Justice Breyer Cites “Urban Legend” of Voter Fraud at the Crawford Oral Argument; He Should Read “The Truth About Fraud”

I believe it is fair to say that that is widespread consensus, if not unanimity, among academics (even those who think Indiana’s law is (or likely is) constitutional) that impersonation voter fraud is not a problem. There are voter fraud problems in U.S. election, much related to registration fraud and to absentee ballots, but NOT related to impersonation voter fraud. The most accessible debunking of all of the numerous claims about impersonation voter fraud appears in The Truth About Fraud, a very careful report written by the Brennan Center’s Justin Levitt. He followed up with this exhaustive analysis of every voter fraud claim raised in any of the briefs in the Indiana voter id case.
In light of this background, a very interesting exchange occurred during the oral argument yesterday in the Indiana voter id case. Paul Smith, for the petitioners, was getting questions about the prevalence of impersonation voter fraud. He was trying to explain how ridiculous it would be for individuals hoping to commit fraud in an election to do so by means of impersonation voter fraud. (The perpetrator would have to find people willing to go into the polling booth claiming to be Jane Done (knowing that the neighbors who are poll workers might know who Jane Doe is or know that she’s moved or is dead) and then pay them to vote in a certain way in a transaction that cannot be verified. And the perpetrator would have to do this on a large enough scale to affect the outcome of the election.)
According to the transcript, at page 22, Justice Breyer interrupted Smith’s explanation of this point to say the following:

    JUSTICE BREYER: You don’t really — I mean, that’s what I wonder if there is no such evidence. How could you get evidence? It used to be common maybe urban legends, but of political bosses voting whole graveyards of dead people. All right. Now, that would be almost impossible to catch, I think. Someone walks in, saying: I’m Joe Smith. He doesn’t say: I’m Joe Smith dead. He says, I’m Joe Smith, and he signs something. And the poll worker looks at it and the signature looks very weird.
    Well, what’s the poll worker supposed to do? He’s not going to go disrupt the election. And is there going to be a policeman there to follow this person home? Of course not.
    So that’s their claim. Their claim is that we have a lot of anecdotes and there is a certain kind of fraud that you really just can’t catch at the poll.

As Marty Lederman noted yesterday on the Election Law listserv

    This was, to my mind, the most exasperating part of the argument. Can Justice Breyer, or any other Justice, truly believe that a party boss could, without detection, pull off a conspiracy of hundreds of people to “vote whole graveyards of dead people”? And that such schemes have regularly been accomplished without anyone breathing a word of them down through the years? “Almost impossible to catch”?! Compared to what? This is, indeed, urban legend, and it’s disheartening that there do not appear to be five Justices who see just how ridiculous this scenario truly is.

I’d add that even accepting he attenuated nature of the state’s interest in stopping this type of voter fraud, there’s simply no reason to impose additional barriers to voting unrelated to this interest. As I’ve argued in my amicus brief, the state has put forward no reason to require indigent voters to make two trips to two different locations (one of which could be at least 17 miles away by public transportation according to oral argument) in order to cast a vote that would count. It is as if the state put polling places in poor neighboorhoods 17 miles away, but in other neighborhoods the polls were easier to get to. The solution is not to allow indigent voters to bring as applied challenges. As I argued yesterday, this will greatly increase the amount of election law litigation, make it come at the worst time in the courts, and undermine voter confidence in both the judiciary and the election process. The solution, instead, is to strike down the Indiana law, pointing out the parts of the law (such as the second trip requirement) that would need to be changed for a voter identification law to be upheld as constitutional.

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