Rights Should Not be Restricted on the Basis of Appearances

A Nebraska Senator has introduced a bill to require photo identification for voting, not because voting fraud is an actual problem, but because Nebraskans perceive there to be such fraud, whether it exists or not. The New York Times wrote a recent story about various Republican state legislators who are taking up this new rationale for voter identification legislation. The reporter’s implicit message is that such a justification is flimsy. And I tend to agree. If voting is a fundamental right protected by the Constitution, legislation should burden its exercise only to address actual harms, not some people’s impressions of reality.  Thus, the legality of these laws should turn on the question of actual voter fraud and the utility of voter identification in curbing it.

But the Times reporter never mentions that the Supreme Court itself has justified campaign finance law on a very similar perception rationale. Since Buckley v. Valeo, legislatures are permitted to regulate campaign expenditures and contributions, which the Court recognizes as protected by the First Amendment, if doing so is needed to avoid corruption or the “appearance of corruption.”

Why should perceptions justify restrictions on free speech rights and not voting rights? Indeed, it seems particularly problematic to let appearances cut against free speech rights.   Speech cannot be subject to heckler’s veto. It should not be vetoed by the misinformed either.

Moreover, the government can combat public misperceptions without restricting individual rights.  It could set up hotlines and a dedicated squad devoted to rooting out voter fraud. If these programs found few instances, the government could publicize the result, undermining any misimpression that voter fraud is substantial. Similarly, special units could focus on the bribery of political officials through campaign contributions.

It is true that many ethics rules attempt to avoid appearances as well as the reality of wrongdoing.. But professional ethics rules do not generally implicate constitutional rights, at least as they are understood today.

Jettisoning the perception rationale would not have a partisan valence. Republicans like voter identification laws and Democrats favor campaign finance laws. Legislators of both parties cannot be allowed to trample on constitutional rights by making claims about citizens’ perceptions, perceptions that they themselves try to distort.

Reader Discussion

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on March 27, 2017 at 01:36:40 am

Requiring photo ID to vote is an insignificant, almost nonexistent burden. Anyone that argues otherwise is being a hysterical ninny. It is not a restriction on voting rights as understood by any citizen with half a brain or isn't hoping to benefit from illegal voting.

I don't know much about Buckley v. Valeo, but given your very silly and very weak argument against voter ID, I can only conclude that there must not be anything really wrong with that decision.

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Image of mrboxty
on March 27, 2017 at 10:04:23 am

It seems the alternative advanced here would only add another layer of bureaucratic red tape and financial waste, while presenting valid ID would not be over-burdensome enough to violate voters rights, as a better alternative.

For the Democratic Party to resist voter ID legislation under this reasoning is to admit the challenges (though by the Libertarian candidate, they were widely encouraged & supported by Demos), to the 2016 Presidential election in Blue-States were baseless and merely political grand-standing.

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Image of Paul Bintto
Paul Bintto
on March 27, 2017 at 11:26:21 am


And here is a nice take on the "alleged" difficulty of providing ID for voting. Once again, we appear to have a case of patronizing white folks whose bigotry of low expectations is not really all that different from racism.
Watch the clip below:


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Image of gabe
on March 27, 2017 at 11:35:40 am

I agree with McGinnis re: perception as one so inclined could use the "perception" tactic to justify all manner of liberty denying proposals.
However, it may also be used to deny the authorities the proper means to verify that the laws, in this case voting laws, are being followed. Producing one's ID ought not to be, nor is it, a significant burden. Does anyone REALLY know anybody that does not possess ID? C'mon!

I suppose next we will be told that when stopped for speeding, I really ought not to produce my ID because it is only a perception, a false one at that, that many motorists will seek to avoid paying their traffic fines.

Also Buckley v Valeo was about far more than perceptions as it infringed upon a basic First Amendment right - speech, albeit corporate speech. We would be better off defending it on that basis than the "perception" issue.

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Image of gabe
on March 27, 2017 at 11:46:58 am

Very telling video. Thanks for posting Mr. Gabe!

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Image of Paul Binotto
Paul Binotto
on March 27, 2017 at 17:23:40 pm

Should a business wait until financial fraud becomes “actual unique and substantial” before instituting proper internal controls? Should an individual wait until he or she has endured “actual unique and substantial harm” before putting locks on his or her doors and windows, and learning situational awareness?

No. We all know that these are potential problems that you do not wait until the harm occurs before taking precautions to prevent fraud, murder, etc. before they happen. Does people’s perception that they are already occurring matter? No. But, that is not why they institute those precautions. They do so to prevent the harm from occurring or at least making it less likely that it will.

That is why minimally intrusive requirements like valid identification is necessary for voting. Recently, everyone was all upset thinking that the Russians hacked the election. They did not. Precautions were already in place as instituted by the Secretary of State’s Office in the various States. And, adding a voter identification requirement can be done where it is minimally intrusive and not designed to reduce voter turnout.

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Image of Greg
on March 27, 2017 at 22:47:32 pm


=== ===
The Nebraska Democratic Party is welcoming refugees with open arms, welcome baskets … and voter registration forms.

A donation drive organized by the NDP collected some 50 gift baskets for refugees. Each contained items like diapers and kitchen utensils, a welcome letter from the Nebraska Democratic Party signed by its chairwoman Jane Kleeb, and a voter registration form, according to a video posted to Facebook by the Nebraska Democratic Party.
=== ===

Why would the Dem party give out voter registration forms to people who have no right to vote, and no prospective right for years? Clearly, there is no danger of them voting. Move along, nothing to see here.

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Image of Andrew Garland
Andrew Garland
on March 28, 2017 at 11:00:03 am

Oh come on now - nothing wrong here. You see the Democrats were simply trying to counter the nefarious influence of the Russkies who, as everyone knows, rigged the election for Trump.


What is more effective in getting votes? Diapers or some scrumptious Cherry Blintzes?

BTW: I am told Hillary likes and uses both.

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Image of gabe
on March 31, 2017 at 06:13:02 am

Correction: "though by the "Green" candidate" - not, "Libertarian", as stated. My apologies to the Libertarians. I get a little confused when trying to keep track of who's who in this ever increasing political field of candidates.

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Image of Paul Binotto
Paul Binotto
on April 30, 2017 at 14:58:11 pm

Buckley v. Valeo is all about appearances. The opinion states that restrictions on campaign contributions are justified by, "the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office."

It was a terrible decision that censors politics and ought to be reversed. It shouldn't be a crime to mail a letter to 2700 of your neighbors but be legal to mail to 2699 of your neighbors.

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Image of Mark Brophy
Mark Brophy

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.