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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.

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