Benjamin Plener Cover (Idaho) has posted this draft, which is creatively entitled “Voter Fraud Mistake,” on SSRN (forthcoming, William and Mary Bill of Rights Journal). Here is the abstract:

False narratives challenging electoral integrity often cite ineligible voting as a prime example of so-called widespread voter fraud. This Article demonstrates that ineligible voting often consists of mistakes that are problematically treated like fraud. Some jurisdictions criminalize ineligible voting on a strict liability basis, imposing punishment even when the ineligible voter is unaware of her ineligibility. When jurisdictions impose this strict criminal liability, mistakes are often misunderstood or misrepresented as fraud. This harsh and confused treatment of voter mistake undermines the criminal justice system by severing criminality from culpability, punishing good faith democratic participation, targeting marginalized populations, and amplifying systemic bias. It also undermines American democracy by chilling eligible voting, needlessly undermining electoral confidence, justifying unnecessary electoral burdens, and allocating the burdens and risks of eligibility determinations away from the election officials best positioned to assume them. Courts should address the strict criminalization of voter mistake by applying the presumption of scienter and recognizing a constitutional mens rea requirement. States should amend their laws to condition criminal liability on knowledge of ineligibility. Congress should similarly amend federal criminal and immigration laws and preempt state laws that impose strict criminal liability. The Help America Vote Act should be clarified (through judicial elaboration or legislative amendment) to make a provisional ballot a true safe harbor for people unsure of their eligibility to vote. Prosecutors should refuse to pursue voter mistake cases. And all of us – including media, scholars, advocates, lawyers, judges, and politicians – must replace the current conflation of voter mistake and voter fraud with a more accurate public discourse that carefully distinguishes between fraud and mistake.