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44 Harv. C.R.-C.L. L. Rev. 1 (2009)
Voter Fraud or Voter Defrauded? Highlighting an Inconsistent Consideration of Election Fraud

handle is hein.journals/hcrcl44 and id is 3 raw text is: Voter Fraud or Voter Defrauded? Highlighting an Inconsistent Consideration of Election Fraud Jocelyn Friedrichs Benson* This Article seeks to highlight the collateral effect of several inconsistent recent federal court decisions that consider a state's interest in addressing the impact of fraud on the electoral process. In an effort to evaluate the impact of varying types of election-related fraud on the political process, I propose that courts view the concept with a focus on (1) the entity that commits the deceptive acts and (2) the effect those acts have on the democratic process. Evaluating recent opinions through this lens illustrates that federal courts are more likely to exhibit deference to a state's interest in limiting avenues for voters acting fraud- ulently, or what I term voter-initiated fraud, than to issues relating to what I call voter-targeted fraud, or actions by various entities intended to deceive, defraud, or intimidate voters. Conversely, quantitative and qualitative evidence, while only mildly conclusive, suggests that the most prevalent and problematic type of election fraud is voter-targeted fraud. This Article suggests that federal courts' current inconsistent evaluation of a state's interest in addressing election fraud stems in part from the lack of a test for evaluating that interest. Such a test should differentiate between the several different types of fraudulent acts that can affect the electoral process. Specifi- cally, I argue that courts could engage in a more consistent approach by linking the analysis of the state's interest in combating election fraud to both the level of broad qualitative and quantitative evidence available regarding the prevalence of that particular strain of fraud, and to the constitutional rights that the fraudu- lent acts, and limits on those acts, implicate. 1. INTRODUCTION Multiple entities, from poll workers to candidates, voters to volunteers, election administrators to challengers, interact to ensure that the outcomes of elections match and reflect the will of a majority of voters. Any of these entities, however, is capable of committing potentially fraudulent acts that threaten the legitimacy of an electoral outcome. Individuals volunteers may misrepresent the subject of a ballot initiative campaign to garner support or signatures to place the initiative on the ballot,' or may submit false registra- * Assistant Professor of Law, Wayne State University Law School. B.A. Wellesley Col- lege; M.Phil, Oxford University; J.D., Harvard Law School. I am grateful for the suggestions and comments provided by Heather Gerken, Zanita Fenton, Michael Pitts, James Tucker, Ellen Dannin, Lance Gable, and Derek Bambauer in the formulation of this article. I am also in- debted to Melanie Elturk and Tierney Eaton for their invaluable and meticulous research assis- tance. All errors and omissions are my own. IHoward Fischer, Petitioners Accused of Misleading Signers, ARIZ. DAILY STAR.NET, June 6, 2007, http://www.azstarnet.com/allheadlines/187145 (describing petition gatherers who encouraged voters to endorse a petition for a ballot initiative to lower gasoline prices when the petition itself was about changing the redistricting process).

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