Article by Kishore Sai Chundi*

3 Fordham L. Voting Rts. & Democracy F. 228

Scholarship on election-administration measures (like voter ID laws) and campaign-finance laws has been siloed.  American political affiliations, in their current form, dictate that liberals support campaign-finance restrictions and oppose voter ID laws, and vice versa for conservatives.  But the Court has analyzed both measures using the similarly odd lens of appearances—the perception of electoral integrity in voter ID cases and the perception of corruption in campaign-finance cases.  Yet despite the nearly identical justifications for campaign-finance and election-administration measures, the Court has treated these claims quite differently.  Election-administration laws receive nearly automatic deference, whereas campaign-finance laws are routinely overturned.  This Article contends that there is no neutral reason for this disparate treatment and shows how lower courts are more willing to overturn election-administration laws rooted in appearance justifications.  The Article concludes by proposing several ways for the Court to reform its jurisprudence of appearances, like affirming lower-court opinions that more intensely scrutinize election-administration laws, forcing states to more narrowly define their appearance justifications, and/or shifting the focus to a motives-based inquiry in keeping with the Court’s racial-gerrymandering jurisprudence.

Introduction

In the immediate aftermath of the 2020 election, a curious post began to circulate online.  With a robustly mustached Joseph Stalin in the background, the post displayed the following (inaccurate) statement: “The people who cast the votes decide nothing.  The people who count the votes decide everything.”¹See Ciara O’Rourke, No, Joseph Stalin Didn’t Say This Statement About Elections, PolitiFact (Mar. 27, 2019), https://www.politifact.com/factchecks/2019/mar/27/viral-image/no-joseph-stalin-didnt-say-statement-about-electio [https://perma.cc/823Y-DCY2]; Mariah Timms, Fact Check:  Stalin Likely Didn’t Say Quote About ‘Those Who Decide the Votes Count Everything’, USA Today (Nov. 11, 2020), https://www.usatoday.com/story/news/factcheck/2020/11/10/fact-check-quote-vote-counting-misattributed-joseph-stalin/6190020002 [https://perma.cc/59DR-4PRZ].  Pundits sang the refrain that confidence in the country’s institutions was at a historic low and misinformation at an all-time high.  The chorus grew operatic as it became clear that the election-administration system was no exception to the confidence crisis, but rather one of its most prominent examples, QAnon Shamans parading through the Capitol and all.

This account of the crisis of confidence is true, but only partially so.  In liberal circles, especially universities, a different orthodoxy prevailed.²See, e.g., Samuel J. Abrams & Amna Khalid, Are Colleges and Universities Too Liberal?  What the Research Says About the Political Composition of Campuses and Campus Climate, Heterodox Acad. (Oct. 21, 2020), https://heterodoxacademy.org/blog/are-colleges-and-universities-too-liberal-what-the-research-says-about-the-political-composition-of-campuses-and-campus-climate%5Bhttps://perma.cc/NNN2-A87U%5D (reviewing several studies to conclude that “the data clearly illustrate that liberals are overrepresented in the faculty as well as among the students and administrators”). But see Naomi Oreskes & Charlie Tyson, Is Academe Awash in Liberal Bias?, Chron. of Higher Educ. (Sept. 14, 2020), https://www.chronicle.com/article/is-academe-awash-in-liberal-bias [https://perma.cc/7EYD-BTRG] (contending that “available data do not support claims that university professors are extremely leftist, that a majority of students are being educated by left-wing professors, or that academe is biased against conservatives” and that widespread belief to the contrary is driven by the “right-wing media”).   There, the party line was to bemoan the corporate capture of Congress, whose whims were dictated by lobbyists rather than localities.  While the lyrics of the two anthems were very different, the tune was strikingly consonant.  In both overwhelmingly liberal and deeply conservative spaces, there were tremendous doubts about the integrity of elections and the democratic process at large.

This Article demonstrates how the legal frameworks of election-administration and campaign-finance claims are strikingly similar.  In both cases, the Court upholds laws based on perceptions—the perception of electoral integrity in election-administration cases and the perception of corruption in campaign-finance cases.  Though united by this jurisprudential oddity, the two frameworks have largely been analyzed separately.  While there is ample scholarship analyzing both election-administration and campaign-finance law, there is precious little that brings both areas of election law into conversation with each other.  This Article aims to bridge that gap and show how the Court does not treat these like justifications alike.

This Article will examine how the U.S. Supreme Court has addressed the issue of voter confidence that pervades political discourse on both sides of the political spectrum, albeit in different ways.  Parts I and II will review and analyze the Court’s analysis of voter confidence claims in the election-administration context and the appearance of corruption claims in the campaign-finance context, respectively.  Because these justifications are based in the perceptions of the voting public and their downstream effects on democratic legitimacy, I refer to both interests as appearance based.  In any case, the upshot of Parts I and II is that the Court does not treat these justifications alike.  Instead, it has practiced reflexive deference towards appearance interests in election-administration cases while engaging in heightened scrutiny of appearance interests in campaign-finance cases.  Part III will refute neutral explanations for the Court’s asymmetrical jurisprudence, including the notion of a link between perceptions of voter fraud and voter ID laws, or between perceptions of corruption and campaign-finance laws.  Part IV explores three proposals for reforming the Court’s asymmetrical jurisprudence of appearances:  affirming lower court opinions that engage in heightened scrutiny of election-administration measures, requiring states to refine the “precise interest” behind the law, and shifting to a motive-based inquiry that recalls the Court’s analysis of gerrymandering claims.  The Article briefly concludes by discussing the pitfalls of this asymmetry.  

I.  Appearances in Election-Administration Cases

This Part traces the evolution of the U.S. Supreme Court’s election-administration doctrine.  It begins by describing the Anderson-Burdick framework for election-administration claims, which in practice has been quite deferential to state laws.  It next argues that the Court extended this level of deference even further in Crawford v. Marion County Election Board despite a lack of evidence to support deference to the state’s interests.  In later cases, the Court has continued to uphold appearance claims by treating them as a preventative measure to counter the lack of supporting evidence.  Part I ends by analyzing how lower federal and state courts have broken away from the Supreme Court’s reflexive deference and sought evidence before automatically upholding laws based on the voter-confidence rationale.

A.  The Anderson-Burdick Balancing Test

Since the 1980s, election-administration cases have been governed by the Anderson-Burdick test, which arose from two cases:  Anderson v. Celebrezze³460 U.S. 780 (1983). and Burdick v. Takushi.⁴504 U.S. 428 (1992).  In Anderson, the Court considered a constitutional challenge to Ohio’s early filing deadline for independent candidates.⁵Anderson, 460 U.S. at 782–83.  Even though the Court invalidated the deadline, it rejected the possibility of a bright-line “litmus-paper test” to determine the constitutionality of voting restrictions.⁶Id. at 789.  Rather, it adopted a balancing approach, instructing courts to “consider the character and magnitude of the asserted injury” and “evaluate the precise interest put forward by the State as justifications for the burden imposed by its rule.”⁷Id.    After “determining the legitimacy and strength of each of those interests” and whether “those interests make it necessary to burden the plaintiff’s rights,” courts must then “weigh[] all these factors” before deciding whether to uphold or invalidate the statute.⁸Id.

In Burdick, the Court clarified the application of the Anderson test, emphasizing that the level of judicial review should match the level of the imposed burden.⁹Burdick, 504 U.S. at 433–34, 438–39, 441.  There, a Hawaii voter challenged the State’s ban on write-in voting, preventing him from casting his vote for a candidate not appearing on the ballot.¹⁰Id. at 430.  The Court reasoned that when a plaintiff’s right to vote is severely restricted, the regulation must be narrowly tailored to a compelling state interest.¹¹Id. at 434 (internal quotation marks omitted).  But when “the burden is slight, the State need not establish a compelling interest to tip the constitutional scales in its direction.”¹²Id. at 439.  The Court applied this standard and upheld Hawaii’s write-in voting prohibition due to the law’s minimal burden on the right to vote.¹³Id. at 440.  The Court emphasized that the State’s primary process allowed candidates to qualify for the ballot through several methods, including canvassing, which allayed concerns over voters’ ability to choose their preferred candidate.¹⁴Id. at 435–36.

In sum, the Anderson-Burdick test requires courts to weigh the State’s asserted interest against the injury to the plaintiff’s constitutional right when faced with all but the most burdensome restrictions on voting.  In those cases, strict scrutiny—that there is a compelling government interest which the law is narrowly tailored to address—is appropriate.  However, since Burdick, the Court has never found that a state law imposes a “severe burden” on the right to vote, and thus has exclusively applied the balancing test.¹⁵See Joshua A. Douglas, A Vote for Clarity:  Updating the Supreme Court’s Severe Burden Test for State Election Regulations that Adversely Impact an Individual’s Right to Vote, 75 Geo. Wash. L. Rev. 372, 377–78 (2007) (“[S]ince the decision in Norman v. Reed, the Supreme Court never again ruled that a regulation imposed a severe burden on voters’ rights.”).  Norman was handed down several months before Burdick.  A thorough Westlaw search did not reveal any change in the situation since 2007.  Even so, when applying the framework, the Court seems to take states’ characterizations of the interests underlying their laws at absolute face value.  For example, in Munro v. Socialist Workers Party, the Court accepted that there was no support for Washington’s interest in avoiding voter confusion and preventing ballot overcrowding.¹⁶479 U.S. 189, 194 (1986).  However, it largely ignored the factual finding, instead emphasizing that “requir[ing] States to prove actual voter confusion, ballot overcrowding, or the presence of frivolous candidacies . . . would invariably lead to endless court battles over the sufficiency of the ‘evidence’ marshaled by a State.”¹⁷Id. at 195.  The Court did not explain why such evidentiary disputes, which are central to the adversarial process, were so undesirable.

Thus, the Court has employed several levels of deference to uphold state election-administration laws. First, it thoroughly analyzes the logical and empirical foundations of the alleged burden on plaintiff’s rights.¹⁸See, e.g., Timmons v. Twin Cities Area New Party, 510 U.S. 351, 358–64 (1997); Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 452–58 (2008); Clingman v. Beaver, 544 U.S. 581, 591–93 (2005).  After finding that voters have not endured a severe burden on their right to vote, the Court employs the Anderson-Burdick balancing framework instead of strict scrutiny.¹⁹See, e.g., Timmons, 510 U.S.at 369–70; Washington State Grange, 552 U.S. at 458–59; Clingman, 544 U.S. at 594–97.  Finally, under the less stringent balancing test, the Court refuses to question the legitimacy of a State’s asserted interests or demand that the interests have any sound empirical basis.²⁰See, e.g., Munro, 479 U.S. at 195 (interpreting Storer v. Brown, 415 U.S. 724 (1974), which upheld a California law banning ballot access to independent candidates who had been affiliated with a political party within the previous year, as providing “no indication that we held California to the burden of demonstrating empirically the objective effects on political stability”).  Because the interests are inevitably considered legitimate, and the burdens deemed inescapably light, the Court upholds the law as constitutional.

B.  Crawford and its Progeny

This deferential playbook is perfectly exemplified by Crawford v. Marion County Election Board, where the Court evaluated a challenge to an Indiana voter identification law.²¹Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008).  The law in question affected around 43,000 Indiana residents who lacked acceptable forms of identification.²²Id. at 187–88.  Although these residents could fill out a provisional ballot, they would have to travel to the county seat to sign an affidavit before a court clerk or local board of elections.²³Id. at 216–17 (Souter, J., dissenting).  While obtaining identification acceptable for voting purposes is free, the documents required for issuing the acceptable identification themselves cost money, as does the trip to the Bureau of Motor Vehicles.²⁴Id. at 212–15.  Nevertheless, Justice Stevens, writing for the majority, reasoned that these burdens did not justify the facial challenge to the statute:  “When we consider only the statute’s broad application to all Indiana voters we conclude that it ‘imposes only a limited burden on voters’ rights.’”²⁵Id. at 202–03

The Crawford majority applied the Anderson-Burdick test to uphold the voter ID law.²⁶Id. at 191 (“However slight that burden may appear . . . it must be justified by relevant and legitimate state interests.”).  In addition to recognizing interests in election modernization and preventing actual voter fraud, the Court stressed that “public confidence in the integrity of the electoral process has independent significance, because it encourages citizen participation in the democratic process.”²⁷Id. at 197.  Crawford’s emphasis on the importance of public confidence mirrors the Court’s earlier discussion of the topic in Purcell. Purcell v. Gonzalez, 594 U.S. 1 (2006) (per curiam). The Purcell Court asserted, “Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy,” because “[v]oter fraud drives honest citizens out of the democratic process.” Id. at 4.  The Court cited Reynolds v. Sims, 377 U.S. 533, 555 (1964), a case establishing the one-person, one-vote principle in response to malapportionment, for the proposition that “[v]oters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised.” Id.  But the Court did not cite any independent evidence to support its finding that public confidence encourages greater democratic engagement.  More importantly, it did not explain why the voter ID law promoted voter confidence, instead accepting Indiana’s assertion at face value.

The Court has continued to follow the Crawford playbook of deference.²⁸See, e.g., Democratic Nat’l Comm. v. Wis. State Legislature, 141 S. Ct. 28, 31 (2020) (Kavanaugh, J., concurring in denial of application to vacate stay) (“That important principle of judicial restraint not only prevents voter confusion but also prevents election administrator confusion—and thereby protects the State’s interest in running an orderly, efficient election and in giving citizens (including the losing candidates and their supporters) confidence in the fairness of the election.”); Id. at 30 (Gorsuch, J., concurring in denial of application to vacate stay) (“Last-minute changes to longstanding election rules risk . . . eroding public confidence in election outcomes.”). See Richard L. Hasen, Reining in the Purcell Principle, 43 Fla. St. U. L. Rev. 427 (2016), for discussion and criticism of the Purcell rule, which the two quotes cited above support.   In the Court’s recent decision in Brnovich v. Democratic National Committee, for example, it upheld two Arizona laws using a voter confidence rationale.²⁹594 U.S. 647 (2021).   The first law required poll workers to discard ballots filled out in the wrong precinct.³⁰Id. at 662.   The other law outlawed third-party mail-in ballot collection, with exceptions for family members, election workers, and postal workers.³¹Id.  Justice Alito, writing for the majority, reasoned that “precinct-based voting helps to ensure that each voter receives a ballot that lists only the candidates and public questions on which he or she can vote, and this orderly administration tends to decrease voter confusion and increase voter confidence in elections.”³²Id. at 681.  In considering the second law, the majority did cite the Carter-Baker Commission report to support the claim that “[l]imiting the classes of persons who may handle early ballots to those less likely to have ulterior motives deters personal fraud and improves voter confidence.”³³Id. at 685.  Nevertheless, the report itself did not cite any authority for its recommendation that states outlaw third-party ballot collection.³⁴Comm’n on Fed. Election Reform, Building Confidence in U.S. Elections 46 (2005), https://www.eac.gov/sites/default/files/eac_assets/1/6/Exhibit%20M.PDF [https://perma.cc/6C4A-38HQ].

More importantly, Justice Alito stressed the validity of a prophylactic justification for voter confidence measures.  The Ninth Circuit had found that “the long and honorable history” of third-party ballot collection in Arizona weighed against any basis for concerns over voter confidence.³⁵Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989, 1037 (9th Cir. 2020).  To give credence to the State’s interest in voter confidence in this case would be to reward proponents of the bill for “us[ing] false statements and race-based innuendo to create distrust.”³⁶Id.  Rather than allowing the State to play both arsonist and firefighter, the Ninth Circuit found that the Gingles tenuousness factor weighed in favor of the plaintiffs.³⁷Id.; see Thornburg v. Gingles, 478 U.S. 30, 44–45 (1986) (describing nine factors relevant to determining if there is a violation of Section 2 of the Voting Rights Act of 1965, as specified by the Senate report accompanying the 1982 amendments).  The Court disagreed, however, emphasizing that “a State may take action to prevent election fraud without waiting for it to occur and be detected within its own borders.”³⁸Brnovich, 594 U.S. at 686.  This prophylactic justification provides an important point of comparison for later evaluation of the level of deference afforded to campaign-finance laws.

Crawford and Brnovich therefore both upheld election-administration laws at least in part due to concerns over voter confidence, which this Article describes as an interest in preventing the appearance of voter fraud.  The Article’s characterization is bolstered by Justice Souter’s dissent in Crawford, which shows how the voter confidence rationale is essentially the appearance of corruption rationale used in the campaign-finance context.  To begin, Justice Souter sharply criticized the majority’s deference to the interest in protecting voter confidence, emphasizing that “the force of the interest depends on the facts (or plausibility of the assumptions) said to justify invoking it.”³⁹Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 235 (2008) (Souter, J., dissenting)  The dissent argued that Indiana had provided neither evidence nor plausible assumptions to support a public confidence crisis resulting from worries over voter fraud.  Indiana could not cite any examples of voter fraud that could be prevented through voter ID.⁴⁰Id. at 226 (“[T]he State has not come across with a single instance of in-person voter impersonation fraud in all of Indiana’s history.”).  It was likewise unable to provide any evidence of widespread voter mistrust of the elections.⁴¹Id. at 235 (“[T]he State has come up with nothing to suggest that its citizens doubt the integrity of the State’s electoral process, except its own failure to maintain its rolls.”).

Interestingly, Justice Souter conceded the State’s overarching interest in protecting voter confidence by pointing to the campaign-finance context:  “The Court has, for example, recognized that fighting perceptions of political corruption stemming from large political contributions is a legitimate and substantial State interest.”⁴²Id.  At the same time, he distinguished the validity of the perception of corruption from the validity of the perception of voter fraud.  Citing Nixon, a case that will be discussed in Part II, Justice Souter argued that we should not doubt that large contributions will sometimes actually corrupt the political system and that voters are suspicious of that effect.⁴³Id.  However, where voter confidence in elections is the basis for voter ID laws, he saw ample reason to doubt both the reality and perception of corruption.⁴⁴Id.  Unlike the perception of corruption arising from large campaign contributions, “[i]t is simply not plausible to assume . . . that a public perception of fraud is nevertheless ‘inherent’ in an election system providing severe criminal penalties for fraud and mandating signature checks at the polls.”⁴⁵Id.

In connecting the appearance of corruption rationale for campaign-finance laws with the voter confidence concerns justifying election-administration laws, Justice Souter demonstrated how the same rationale runs through both contexts.  However, as Part II will show, Justice Souter’s partiality to the perception of corruption and dismissal of the perception of fraud is unique when compared to the Court’s jurisprudence as a whole.  The Court has certainly been partial, but its partiality has run in the other direction, as it scrutinizes appearance of corruption justifications while automatically accepting appearance of voter fraud justifications.

C.  Lower Courts Have Not Uniformly Followed the Court’s Reflexive Deference

The Court’s reflexive deference is not the necessary endpoint for recognizing appearance of voter fraud justifications.  Unlike the Supreme Court, federal circuit courts and state courts have regularly invalidated state laws on the grounds that they were not credibly related to the purported interest in protecting voter confidence.

One striking example is the case of Veasey v. Abbott, where the Fifth Circuit considered statutory and constitutional challenges to Texas Senate Bill 14 (SB14), which imposed photo ID requirements in order to vote.⁴⁶830 F.3d 216 (5th Cir. 2016).  Much like the Supreme Court, Texas put forth justifications including safeguarding voter confidence in the integrity of elections.⁴⁷Id. at 227. But the Texas law collided with Thornburg v. Gingles, a landmark ruling interpreting Section Two of the Voting Rights Act (“VRA”) to outlaw the dilution of minority voting power.⁴⁸478 U.S. 30, 47 (1986).  The Gingles Court adopted a set of nine inexhaustive factors detailed in the Senate Report accompanying the 1982 amendments to the VRA, which courts analyze to determine if impermissible vote dilution has occurred.⁴⁹Id. at 44–45 (citing S. Rep. No. 97-417, at 28–29 (1982)).  In Veasey, the Fifth Circuit focused on the ninth Gingles factor, which is whether “the policy underlying the State’s or the political subdivision’s use of the contested practice or structure is tenuous.”⁵⁰Id. at 45.  The court deemed Texas’s interest in safeguarding voter confidence tenuous,⁵¹830 F.3d at 262 (“[A] tenuous fit between the expressed policy and provisions of the law bolsters the conclusion that minorities are not able to equally participate in the political process.”). and affirmed the district court’s finding that there was “no credible evidence to support assertions that voter turnout was low due to a lack of confidence in elections, that SB14 would increase public confidence in elections, or that increased confidence would boost voter turnout.”⁵²Id. at 263.  Thus, the Texas law violated Section Two of the VRA due to SB14’s discriminatory effect on poor, Black, and Hispanic Texans.⁵³Id. at 264–65.   In this way, both the district and circuit courts conducted a heightened inquiry into the State’s purported interest in preserving voter confidence.

The Fifth Circuit is not alone in scrutinizing the state interest in safeguarding voter confidence.  Similar instances of courts invalidating state law despite the State’s interest in protecting voter confidence appear in the Ninth,⁵⁴Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989, 1046 (9th Cir. 2020) (“If there is a lack of confidence in third-party ballot collection in Arizona, it is due to the fraudulent, race-based campaign mounted by the proponents of H.B. 2023.”), rev’d, Brnovich v. Democratic Nat’l Comm., 594 U.S. 647 (2021). Tenth,⁵⁵Fish v. Schwab, 957 F.3d 1105, 1134 (10th Cir. 2020) (“[T]he evidence did not demonstrate that Kansas’ interest in safeguarding voter confidence made it necessary to enact the DPOC requirement.”).  and Eleventh Circuits,⁵⁶Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1323 (11th Cir. 2019) (finding that “Florida’s interest in . . . protecting public confidence in the legitimacy of the election . . . sw[ung] decisively in favor of the DECF and the Nelson campaign,” who had challenged Florida’s (lack of) process for rejecting ballot signature matches). at the very least.  Likewise, state courts have entered the fray.  For example, the Montana Supreme Court found that the State failed to provide sufficient evidence that a law eliminating student ID as a valid standalone form of voter ID would ensure voter confidence.⁵⁷Mont. Democratic Party v. Jacobsen, 518 P.3d 58, 74 (Mont. 2022); see also N.H. Democratic Party v. Sec’y of State, 174 N.H. 312, 329 (2021) (affirming the trial court’s finding that “the State’s perceived need to protect the integrity of New Hampshire’s elections was ‘illusory’”).  The court highlighted the fact that the legislature allowed concealed-carry permits to suffice as standalone voter ID, even though Montana had no statewide standards or even photo requirements for concealed-carry permits.⁵⁸Mont. Democratic Party v. Jacobsen, 518 P.3d at 69.

This does not imply that skepticism replaces deference as the norm in the circuits and in the states.  To the contrary, in those very same circuits, there are many cases where the state’s interest in protecting voter confidence prevails.⁵⁹See, e.g., Greater Birmingham Ministries v. Sec’y of State for Alabama, 992 F.3d 1299, 1327 (11th Cir. 2021) (upholding an Alabama voter ID law against claims of racial discrimination because there were “valid neutral justifications (combatting voter fraud, increasing confidence in elections, and modernizing Alabama’s elections procedures) for the law’s passage.”); Frank v. Walker, 768 F.3d 744, 751 (7th Cir. 2014) (“That photo IDs promote confidence, even if they have no other effect, is widely accepted outside the field of voting.”); Ohio Democratic Party v. Husted, 834 F.3d 620, 633 (6th Cir. 2016) (“Unlike the district court, we adhere to Crawford’s approach and conclude that the State’s purpose in preventing potential fraud and promoting public confidence is in furtherance of legitimate and important regulatory interests.”).  Similarly, there are many cases pointing in the opposite direction in state courts.⁶⁰See, e.g., League of Women Voters of Wis. Educ. Network, Inc. v. Walker, 357 Wis.2d 360, 385 (2014) (“Act 23’s presentation requirement is a reasonable voter regulation that is supportive of the State’s significant interests in promoting voter confidence in the outcome of elections.”); All. for Retired Ams. v. Sec’y of State, 240 A.3d 45, 53 (Me. 2020) (holding that Maine’s deadline for accepting absentee ballots “serve[d] an important State interest in maintaining voter confidence in the integrity of the election”); League of United Latin Am. Citizens of Iowa v. Pate, 950 N.W.2d 204, 211 (Iowa 2020) (upholding an Iowa law preventing auditors from correcting defective absentee ballot requests, reasoning that “measures to protect public confidence in the electoral process can, on their own, offer some justification for minimally burdensome regulations.”).  The key takeaway, however, is the lack of reflexive deference.  Circuit courts and state courts, unlike the current Supreme Court, are sometimes willing to demand evidence before summarily affirming the relationship between voter perceptions and voting restrictions.

II.  Appearances in Campaign-Finance Cases

As Justice Souter’s Crawford dissent indicated, the Court has recognized a state interest in preventing the appearance of corruption in its evaluation of campaign-finance laws.  This Part begins by analyzing the Court’s recognition of the appearance justification for campaign-finance laws in Buckley v. Valeo.⁶¹424 U.S. 1 (1976).  Buckley shows that the Court has extended some deference towards this appearance-based justification.  Nevertheless, Buckley also demonstrates that the deference to the appearance of corruption has been far from reflexive even from the very beginning, which stands in stark contrast to its election-administration jurisprudence.  Next, I trace the expansion of the Court’s conception of the appearance of corruption, before describing its contraction in Citizens United v. FEC⁶²558 U.S. 310 (2010). and McCutcheon v. FEC.⁶³572 U.S. 185 (2014).  In these two cases, the Court arbitrarily separated campaign-finance laws and the interest in preventing the appearance of corruption. 

A.  The Buckley Paradigm

The Court’s appearance-based jurisprudence in the campaign-finance context emerged from the landmark case of Buckley v. Valeo.⁶⁴424 U.S. 1 (1976).  Buckley involved a challenge to the Federal Election Campaign Act (“FECA”), which imposed contribution and expenditure limits on political campaigns, as well as disclosure requirements.⁶⁵Buckley v. Valeo, 424 U.S. 1 (1976).  The Court emphasized the distinction between contributions and expenditures, upholding the contribution and disclosure provisions, but invalidating the expenditure restrictions.⁶⁶Id.  The survival of the contribution and disclosure components rested on “the Act’s primary purpose to limit the actuality and appearance of corruption resulting from large individual financial contributions.”⁶⁷Id. at 26 (emphasis added).  The Court emphasized that the appearance of corruption was “of almost equal concern as the danger of actual quid pro quo arrangements,” due to “the opportunities for abuse inherent in a regime of large individual financial contributions.”⁶⁸Id. at 27.  The opinion relied on the Letter Carriers case, where the Court upheld the Hatch Act on appearance grounds.⁶⁹U.S. Civ. Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 565 (1973) (“[I]t is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.”).   The Buckley Court reasoned that in both cases, “Congress could legitimately conclude that the avoidance of the appearance of improper influence ‘is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent.’”⁷⁰Buckley, 424 U.S. at 27.  The concerns over voter confidence expressed in Buckley thus directly parallel those described in Crawford and Purcell.⁷¹See supra Part I.C.   

From the very beginning of its campaign-finance jurisprudence, however, the Court did not exercise the reflexive discretion characteristic of the election-administration context.  In Buckley itself, the Court was willing to question the accuracy of the Government’s concern over the appearance of corruption to invalidate FECA’s expenditure provisions.  For example, it invalidated the $1,000 limitation on individual campaign expenditures partially on the grounds that “the independent advocacy restricted by the provision does not presently appear to pose dangers of real or apparent corruption.”⁷²Buckley, 424 U.S. at 46.  Likewise, the Court struck down the limitations on a candidate’s personal expenditures towards their campaign in part because “the prevention of actual and apparent corruption of the political process does not support the limitation on the candidate’s expenditure of his own personal funds.”⁷³Id. at 53.    Unlike Crawford and Brnovich, where the Court supplied neither evidence nor explanation for its decisions to uphold election-administration laws,⁷⁴See supra Part I.C. Buckley presents a stark contrast both in terms of its lack of reflexive deference and its willingness to provide reasons.

Regardless of the accuracy of the Court’s determinations, it was willing to evaluate the factual link between the proposed measure and the actual appearance of corruption.  The problem is that the Court relied on speculation.  To support the lack of a connection between the limitation on independent expenditures and the appearance of corruption, the Court conjectured that “independent expenditures may well provide little assistance to the candidate’s campaign and indeed may prove counterproductive.”⁷⁵Id. at 47.  In denying the relevance of the limitations on a candidate’s personal spending to the appearance of impropriety, the Court hypothesized that “the use of personal funds reduces the candidate’s dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse to which the Act’s contribution limitations are directed.”⁷⁶Id. at 53.  Summarizing the Court’s strategy in Buckley demonstrates its convoluted nature:  the Court speculated about the existence of a factual basis to support the finding that there was no appearance of impropriety.

B.  Upholding and Expanding Buckley

After Buckley, the Court continued to evaluate campaign-finance laws using an appearance of corruption justification and extensively scrutinize the basis for the asserted interest in preventing the appearance of corruption.  However, in later cases, the Court expanded its conception of the appearance of corruption to include the appearance of undue influence and quid pro quo.  In some cases, it seems like this expanded conception of corruption could lead to similar deference as the election-administration context.  Nevertheless, even where the Court upheld campaign-finance laws using the broader concept of corruption, it tended to point to actual evidence.

The Court soon extended Buckley’s reasoning for invalidating FECA’s limitation on individual campaign expenditures to the Political Action Committee (“PAC”) context.  It considered a request for declaratory relief that Section 9012(f) of the Presidential Election Campaign Fund Act was constitutional.⁷⁷FEC v. Nat’l Conservative Pol. Action Comm., 470 U.S. 480 (1985).  Under pain of criminal sanction, the provision prohibited PACs from spending in excess of $1000 towards a candidate already receiving public financing.⁷⁸Id. at 482.  The Court reaffirmed Buckley’s holding that “preventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances.”⁷⁹Id. at 496–97.  It also extended Buckley’s speculative reasoning, finding that without prearrangement and coordination there was no fear that the expenditures were quid pro quo arrangements.⁸⁰Id. at 498.  The Court dismissed concerns about the greater corrupting influence of PACs relative to individuals because the potential corruption was never explained and that quid pro quo was a possibility, not reality.⁸¹Id.  Thus, in a particularly ironic twist, the Court no basis for the appearance of corruption using its own speculations, and then criticized the locality’s worries as merely speculative.

The Court also followed the Buckley approach in Citizens Against Rent Control v. City of Berkeley.⁸²454 U.S. 290 (1981).  There, the Court considered a local law in Berkeley, California, which prohibited ballot initiative campaigns from accepting contributions greater than $250.⁸³Id.  Citing Buckley, the Court emphasized the validity of a locality’s concern about “the perception of undue influence of large contributors to a candidate.”⁸⁴Id. at 297.  Once again, the Court axiomatically dismissed the city of Berkeley’s worries:  “there is no risk that the Berkeley voters will be in doubt as to the identity of whose money supports or opposes a given ballot measure since contributors must make their identities known under [Section] 112 of the ordinance.”⁸⁵Id. at 298.  The Court therefore followed the Buckley strategy of tacitly requiring a factual basis for the state interest in preventing the appearance of corruption, and then evaluating the factual basis through conjecture.  Crucially, it applied the same analysis to state and local measures that it used in the context of the federal scheme challenged in Buckley.  This fact allows for direct comparison of the election-administration context, which predominantly considers challenges to state laws, with the campaign-finance context.

In another line of cases, however, the Court expanded its conception of corruption.  Hints of this expansion are found even in Citizens Against Rent Control, where the Court accepted the “perception of undue influence” as an appropriate state concern.⁸⁶See id. at 437–38.  In Nixon v. Shrink Missouri Government PAC, the Court made this expansion explicit.⁸⁷528 U.S. 377 (2000).  There, the Court considered a challenge to Missouri’s campaign contribution limits.⁸⁸Id.  The majority described the state interest in preventing corruption as “a concern not confined to bribery of officials, but extending to the broader threat from politicians too compliant with the wishes of contributors.”⁸⁹Id. at 389.    In Nixon, it appeared that the Court was using this broader conception to automatically uphold the contribution limits.  The respondents criticized the Missouri legislature for its failure to provide evidence of actual corruption or even a perception of corruption among Missouri voters to support these asserted interests,⁹⁰Id. at 390–91.  but the Court pointed back to the respondents.  The Court placed the evidentiary burden on respondents and found “there [was] little reason to doubt” that large campaign contributions will sometimes corrupt the system and voters will be suspicious.⁹¹Id. at 395.  Thus, the Court upheld the campaign-finance law using an approach that demanded no evidence before deeming the measure constitutional.

Just one year later, in FEC v. Colorado Republican Federal Campaign Committee, the Court clarified the scope of its deference in considering a facial challenge to FECA’s limitation on political party expenditures in U.S. senate campaigns.⁹²533 U.S. 431, 438–39 (2001).  The majority described an expanded conception of corruption similar to that of Nixon:  “corruption [is] understood not only as quid pro quo agreements, but also as undue influence on an officeholder’s judgement, and the appearance of such influence.”⁹³Id. at 441.   The Court upheld the statutory limitations using the broader corruption rationale, stressing that “substantial evidence demonstrates how candidates, donors, and parties test the limits of the current law, and it shows beyond serious doubt how contribution limits could be eroded” if the statute were struck down.⁹⁴Id. at 457.  The evidence mentioned included statements by several campaign officials encouraging donors to contribute to the party after hitting the direct campaign contribution limit, as well as indications of “tallying, a system that helps connect donors to candidates through the accommodation of a party.”⁹⁵Id. 458–59.  Therefore, while the Court employed a prophylaxis rationale resembling that of Brnovich, it diverged from Brnovich, and indeed Nixon, by actually citing evidence of a condition requiring preventive care.  Nevertheless, as Section C will demonstrate, the Court’s expanded conception of corruption and its willingness to uphold campaign-finance laws was temporary.

C.  Retreating in Citizens United and McCutcheon

In Citizens United, the Court backed away from its broader conception of corruption and its willingness to uphold campaign-finance laws.  The Court invalidated bans on independent corporate campaign expenditures, holding that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”⁹⁶Citizens United v. FEC, 558 U.S. 310, 357 (2010).  Justice Kennedy, writing for the majority, reeled in the expansive conception of corruption and claimed adherence to Buckley’s principle that the “governmental interest in preventing corruption or the appearance of corruption . . . was limited to quid pro quo corruption.”⁹⁷Id. at 359.  Justice Kennedy went so far as to confidently proclaim that “[t]he appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”⁹⁸Id. at 360.  Far from citing empirical evidence, the Court did not even produce speculation.  Rather, it found by fiat that the appearance of corruption was absent.

In McCutcheon v. FEC, the Court restated its cabined interpretation of corruption from Citizens United to invalidate FECA’s limit on aggregate contributions.⁹⁹572 U.S. 185, 207–08 (2014).  Chief Justice Roberts’s plurality opinion extensively inquired into the validity of concerns over the appearance of corruption.  For starters, the Chief Justice reasoned that “there is not the same risk of quid pro quo corruption or its appearance when money flows through independent actors to a candidate,” because “the chain of attribution grows longer, and any credit must be shared by actors along the way,” each with their own discretion over how the funds are used.¹⁰⁰Id. at 210–11.   The opinion then constructed and deconstructed a confusing set of hypotheticals in an attempt to show that eliminating the aggregate contribution regime would not permit functional circumvention of the base limits.¹⁰¹Id. at 211–18.  Chief Justice Roberts asserted that “it is hard to believe that a rational actor would engage in such machinations,”¹⁰²Id. at 213. similar to the Court’s already discussed instances of speculative reasoning.  Ironically, however, the plurality opinion characterized the lower court’s finding as “speculation” because it “imagine[d]” a scenario to justify the government’s worries about circumvention.¹⁰³Id. at 215.

In sum, the Court has engaged in fairly extensive scrutiny of the government interest in preventing the appearance of corruption from the very inception of its recognition, which has only grown stronger in recent years.  It has not extended this same level of inquiry to appearances in the election-administration context.  The next Part will propose and assess potential explanations for the Court’s asymmetrical evaluations of appearances.

III.  Alternative Explanations for the Court’s Asymmetrical Jurisprudence

This Part will examine three neutral justifications for the Court’s asymmetrical jurisprudence.  First, that the campaign-finance laws impose burdens on the right to free speech whereas election-administration laws levy burdens on the right to vote.  Second, that voter fraud is harder to detect than corruption, which would make reliance on appearances necessary to make up for the lack of a factual record.  The last possibility points to an empirical finding that campaign-finance laws do not affect voter perceptions, while voter ID laws do.  While all these explanations fall flat, this Part focuses particularly on the final explanation.  It discusses empirical literature on both voter ID laws and campaign-finance laws and concludes that neither has any appreciable effect on voter perceptions of fraud or corruption.

A.  Right to Free Speech vs. Right to Vote

A central distinction between campaign-finance regulations and election-administration restrictions is that the former impose burdens on the right to free speech, whereas the latter impose on the right to vote.  But to justify the higher deference given to the appearance of voter fraud compared to the appearance of corruption, one must explain why the right to free speech merits greater protection than the right to vote.  To be sure, as a descriptive matter, the Court in practice has privileged the right to free speech above the right to vote.  Nevertheless, this Section will argue that this disparate treatment is misguided, and that even if one finds it acceptable, there is no reason to extend the disparate treatment to the Court’s evaluation of appearance justifications.

The Court’s implicit elevation of the right to free speech over the right to vote is evident from the case law discussed in Parts I and II.  Consider, for example, how the Court evaluated the burdens placed on the right to free speech in Citizens United.  There, Justice Kennedy described the statute as “an outright ban, backed by criminal sanctions.”¹⁰⁴Citizens United v. FEC, 558 U.S. 310, 337 (2010).  Likewise, the majority stressed that “PACs are burdensome alternatives; they are expensive to administer and subject to extensive regulations.”¹⁰⁵Id.  To the Citizens United Court, these “onerous restrictions” created the worrisome possibility that “a corporation may not be able to establish a PAC in time to make its views known regarding candidates and issues in a current campaign.”¹⁰⁶Id. at 339. The Court went so far as to apply a results analysis, arguing that the weight of the burden placed on corporate speech through PACs “might explain why fewer than 2,000 of the millions of corporations in this country have PACs.”¹⁰⁷Id. at 338.

Compare Citizens United’s treatment of the burden placed on corporate speech with Crawford’s characterization of the burden imposed on Indiana voters.  There, the dissent claimed that there was a weighty burden faced by “about 1% of the State’s voting age population:”¹⁰⁸Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 218 (2008) (Souter, J., dissenting).

Tens of thousands of voting-age residents lack the necessary photo identification. A large proportion of them are likely to be in bad shape economically.  The Voter ID law places hurdles in the way of either getting an ID or of voting provisionally, and they translate into nontrivial economic costs.  There is accordingly no reason to doubt that a significant number of state residents will be discouraged or disabled from voting.¹⁰⁹Id. at 220–21.

Nevertheless, the Crawford majority dismissed these worries, finding that “for most voters . . . the inconvenience of making a trip to the BMV, gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote.”¹¹⁰Id. at 198.    For the subset of voters who do face a heavier burden, “[t]he severity of that burden is . . . mitigated by the fact that, if eligible, voters without photo identification may cast provisional ballots.”¹¹¹Id. at 199.  

The Court’s dismissal of these worries in Crawford stands in stark contrast to its special solicitude for the imposition on corporate speech at issue in Citizens United.  For one, to use the language of Citizens United, IDs are “extensively regulated,” imposing fees for application, requiring periodic renewal (also subject to a fee), and levying criminal penalties for misuse.¹¹²See, e.g., Conn. Gen. Stat. § 1-1h (2024).  Crucially, obtaining an ID recursively requires identification,¹¹³Id. which minority, low-income, and/or young voters disproportionately lack.¹¹⁴See Vanessa M. Perez, Americans with Photo ID:  A Breakdown of Demographic Characteristics, Project Vote 1 (Feb. 2015), https://www.projectvote.org/wp-content/uploads/2015/06/AMERICANS-WITH-PHOTO-ID-Research-Memo-February-2015.pdf [https://perma.cc/U3NZ-GX87].    Just as a corporation may not be able to set up a PAC soon enough to make its views heard, voters may not be able to secure ID in time before an election, a problem for which provisional ballots are an inadequate solution given that almost 30% of them are not counted.¹¹⁵See Provisional Ballots, Mass. Inst. Tech. Election Data Science Lab (Mar. 27, 2024), https://electionlab.mit.edu/research/provisional-ballots [https://perma.cc/WXF3-23PB]. Crucially, if Crawford had focused on the results of voter ID measures, as the Citizens United Court did for the ban on independent corporate expenditures, then it would have had to grapple with the fact that voter ID laws can depress minority turnout by upwards of 10%.¹¹⁶See Zoltan Hajnal, Nazita Lajevardi & Lindsay Nielson, Voter Identification Laws and the Suppression of Minority Votes, 79 J. Pol. 363, 368 (2017) (“In the general elections, the model predicts that Latinos are 10% less likely to turn out in states with strict ID laws than in states without strict ID regulations, all else equal.  These effects are almost as large in primary elections.  Here, a strict ID law could be expected to depress Latino turnout by 9.3 percentage points, black turn-out by 8.6 points, and Asian American turnout by 12.5 points.”).

There are many arguments against the disparate treatment of the right to free speech and the right to vote.  I will briefly outline a few.  The first claim is that the right to vote is subsumed within the right to free speech.  This stems from the view that voting is an expressive act, a claim supported both by political theory and the Court’s own characterization of voting as involving the voter’s “voice.”¹¹⁷See Armand Derfner & J. Gerald Hebert, Voting is Speech, 34 Yale L. & Pol’y Rev. 471, 485–86 (2016) (collecting cases); see generally Adam Winkler, Expressive Voting, 68 N.Y.U. L. Rev. 330 (1993).  As an expressive act, voting falls under the First Amendment, which the Court has liberally construed as extending to actions like advertising, flag burning, and lest we forget, campaign funding.¹¹⁸Derfner & Hebert, supra note 117, at 489; see also supra Part II.  Framed in this First Amendment lens, election-administration laws and campaign-finance laws both implicate the same right, and therefore do not merit disparate levels of deference.

A related but distinct vein of argument is that the right to vote is a distinct and fundamental right entitled to the same deference as the right to free speech.¹¹⁹Joshua A. Douglas, Is the Right To Vote Really Fundamental?, 18 Cornell J. L. & Pub. Pol’y 143, 145–46 (2008) [hereinafter Douglas, Right to Vote]; see, e.g., Reynolds v. Sims, 377 U.S. 533, 561–62 (1964) (“Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society.”); Harper v. Virginia Bd. of Elections, 383 U.S. 663, 670 (1966) (“For, to repeat, wealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned.”); Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986) (“The power to regulate the time, place, and manner of elections does not justify, without more, the abridgment of fundamental rights, such as the right to vote.”).   This approach has the benefit of preserving unique aspects of the right to vote not easily explained by a purely expressive theory, like the concerns implicated by gerrymandering and apportionment.¹²⁰Winkler, supra note 117, at 337–38.  It demands the same level of deference for the right to free speech and the right to vote not because they are the same right, but because they are both first-class rights of utmost importance.

If one rejects these arguments, however, accepting the Court’s disparate treatment of the right to vote and the right to free speech in no way requires accepting the asymmetrical application of its appearances jurisprudence.  The crucial point here is that the Court has already accounted for the difference between the right to free speech and the right to vote by prescribing strict scrutiny for the former¹²¹Derfner & Hebert, supra note 117, at 476 (“When the Supreme Court classifies an activity as speech entitled to First Amendment protection, it subjects any law restricting or burdening that activity to the highest level of scrutiny.”); Citizens United v. FEC, 558 U.S. 310, 340 (2010) (“Laws that burden political speech are ‘subject to strict scrutiny.’”).  and often using a lower standard of review for the latter.¹²²Douglas, Right to Vote, supra note 119, at 158 (“Thus, a reviewing court need not always use strict scrutiny to analyze an election law claim, because states are allowed to engage in ‘substantial regulation of elections.’”); Burdick v. Takushi, 504 U.S. 428, 433 (1992) (“[T]o subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest . . . would tie the hands of States seeking to assure that elections are operated equitably and efficiently.”).  This was not always the case:  the Court routinely applied strict scrutiny to voting rights cases before eventually adopting the less stringent Anderson-Burdick balancing test.¹²³See Joshua A. Douglas, (Mis)Trusting States to Run Elections, 92 Wash. U. L. Rev. 553, 559 (2015) [hereinafter (Mis)trusting States)] (“But in the 1960s–when election law first became a distinct field–the Court questioned more vigorously a state’s underlying rationale for its election rules.”); See, e.g., Plyler v. Doe, 457 U.S. 202, 217 n.15 (1982) (“With respect to suffrage, we have explained the need for strict scrutiny as arising from the significance of the franchise as the guardian of all other rights.”); Dunn v. Blumstein, 405 U.S. 330, 336 (1972) (“But, as a general matter, ‘before that right [to vote] can be restricted, the purpose of the restriction and the assertedly overriding interests served by it must meet close constitutional scrutiny.’”); Reynolds, 377 U.S. at 562 (“[A]ny alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.”).  Thus, to the extent that one thinks that the right to free speech and the right to vote are distinct, the distinction is already recognized in the doctrine.  The further disparity between the level of inquiry conducted into the appearance of voter fraud and the appearance of corruption is redundant.  In sum, without correction, the asymmetry only contributes to a fire sale on the already discounted right to vote.

B.  Ease of Detecting Voter Fraud vs. Ease of Detecting Corruption

One could justify a greater level of deference to the state interest in preventing the appearance of voter fraud if it was harder to detect than corruption.  Sources ranging from Judge Richard Posner to the Heritage Foundation have argued that the difficulty of detecting voter fraud explains the lack of data upon which to base legislation.¹²⁴Crawford v. Marion Cnty. Election Bd., 472 F.3d 949, 953 (7th Cir. 2007), aff’d, 553 U.S. 181 (2008) (“But the absence of prosecutions is explained by the endemic underenforcement of minor criminal laws . . . and by the extreme difficulty of apprehending a voter impersonator.”).  Judge Posner, writing for the majority, describes a hypothetical scenario where someone votes using an alias, and imagines the difficulty of remembering the person’s face, the ease of slipping away, and other obstacles to apprehension. See also Heritage Found., Voter Fraud, https://www.heritage.org/election-integrity/heritage-explains/voter-fraud [perma.cc/2WSQ-UDDS] (last visited May 6, 2024) (“Unfortunately, too often voter fraud goes undetected, and when it is discovered, overburdened prosecutors seldom prioritize these cases.”).  The implication is that without deference to the appearance of voter fraud, courts would be unable to uphold any legislative action on voter fraud whatsoever.  On the other hand, it is easier to detect corruption and legislatures will have more evidence for the measures they take, so a lower level of deference for appearance of corruption justifications is appropriate.¹²⁵While there are sources emphasizing the difficulty of detecting corruption, see Heywood & Rose, infra note 127, I was unable to find a source making the exact argument that it is easier to detect than voter fraud.  This is in part due to the divide between the campaign-finance literature and the election-administration literature that this Article has attempted to bridge.  In any case, to explain the asymmetrical levels of deference through ease of detection, it is logically necessary that one be easier to detect than the other.

The main flaw in this argument is that its view of the difficulty of detection is diametrically opposed to reality.  For one, voter fraud is conceptually clearer than corruption.  Voter fraud has its various flavors, to be sure, but ultimately it boils down to three categories:  schemes by individual voters to cast invalid votes, efforts by election officials to tamper with the vote tally, and impermissible coercion of voters.¹²⁶See Heritage Found., supra note 124 for an enumeration of nine types of voter fraud: voter impersonation, fraudulent registration, ineligible voting, duplicate voting, absentee ballot fraud, ballot petition fraud, buying votes, illegal assistance, and changing the vote tally.  The first six types fall under the category of invalid votes being counted, buying votes and providing illegal assistance fall under coercion, and changing the vote tally falls under both discounting valid votes and counting invalid votes.  The open-textured nature of corruption, on the other hand, makes it difficult to evaluate.¹²⁷See, e.g., Paul M. Heywood & Jonathan Rose, “Close but no Cigar”:  The Measurement of Corruption, 34 J.  Pub. Pol. 507, 526 (2014) (describing efforts to develop corruption measures as a “Sisyphean task” on account of the “gap between the very conceptualization of corruption . . . and its measurement,” as well as its context- and sector-specific nature); Adam Graycar & Tim Prenzler, Understanding and Preventing Corruption 34 (2013) (emphasizing that “measuring corruption is a hugely difficult task” because “most of the traditional measurement methods of the social sciences do not apply”).  Courts have understood as much, with Buckley recognizing that “the scope of such pernicious practices [as political quid pro quo] can never be reliably ascertained.”¹²⁸Buckley v. Valeo, 424 U.S. 1, 27 (1976) (per curiam); cf. United States v. Myers, 527 F. Supp. 1206, 1236 (E.D.N.Y. 1981) (“[T]rafficking in corrupt political influence is extremely difficult to detect.”); United States v. Kelly, 707 F.2d 1460, 1474 (D.C. Cir. 1983) (“Corruption is ‘that type of elusive, difficult to detect, covert crime which may justify Government infiltration and undercover activities.’” (quoting United States v. Alexandro, 675 F.2d 34, 42 (2d Cir. 1982))). This difficulty of quantifying corruption is reflected in evolution of the Court’s own jurisprudence, which has in the past recognized a broader conception of undue influence before restricting it to financial quid pro quo.¹²⁹See supra pp. 241–43.

Turning to the actual record, voter fraud is astonishingly rare.¹³⁰See, e.g., Lorraine C. Minnite, The Myth of Voter Fraud (2010) (showing that voter fraud is exceedingly rare and arguing that it is actually just a partisan chimera); Justin Levitt, The Truth About Voter Fraud, 4 (2007) (“It is more likely that an individual will be struck by lightning than that he will impersonate another voter at the polls.”).  Allegations of voter fraud are aplenty, but independent audits and investigations routinely reveal little to no actual impropriety.¹³¹See Minnite, supra note 130, at 12–22 for a review and refutation of numerous types of alleged voter fraud through double voting, dead voters, fake addresses, ineligible voters, improper registration, vote buying, and poll worker fraud. See also Jack Healy, Michael Wines & Nick Corasanti, Republican Review of Arizona Vote Fails to Show Stolen Election, N.Y. Times (last updated Sept. 30, 2021), https://www.nytimes.com/2021/09/24/us/arizona-election-review-trump-biden.html [https://perma.cc/J6H7-QAZA] (“After months of delays and blistering criticism, a review of the 2020 election in Arizona’s largest county, ordered up and financed by Republicans, has failed to show that former President Donald J. Trump was cheated of victory.  Instead, the report from the company Cyber Ninjas said it found just the opposite: It tallied 99 additional votes for President Biden and 261 fewer votes for Mr. Trump in Maricopa County, the fast-growing region that includes Phoenix.”); Robert Dowen & Pooja Salhotra, Texas Elections Secure Despite COVID-related “Irregularities” in 2020, Audit Finds, Tex. Trib. (Dec. 19, 2022, 7:00 PM), https://www.texastribune.org/2022/12/19/texas-elections-2020-audit-john-scott-secretary-state [https://perma.cc/WSZ5-MQG9]; Scott Bauer, Wisconsin Audit Finds Elections are ‘Safe and Secure’, Assoc. Press. (Oct. 22, 2021, 7:44 PM), https://apnews.com/article/joe-biden-wisconsin-presidential-elections-state-elections-madison-9a2f172dd8074668ded26bd5b0b41fbb [https://perma.cc/2NWR-AWWF].  This helps refute the argument that the infrequency of voter fraud convictions is due to the difficulty of detecting it.  Even the Heritage Foundation, which has every incentive to examine the record with a fine-toothed comb for evidence of voter fraud, could find no more than 1,500 proven cases of election fraud stretching back to 1982¹³²Heritage Found., A Sampling of Recent Election Fraud Cases from Across the United States, https://www.heritage.org/voterfraud [https://perma.cc/838S-DZYC] (last visited May 6, 2024). among more than three billion votes in federal elections.¹³³Rudy Mehrbani, Heritage Fraud Database: An Assessment, Brennan Ctr. For Just. (Sept. 8, 2017), https://www.brennancenter.org/our-work/research-reports/heritage-fraud-database-assessment [https://perma.cc/8CL4-SZEK].  This number does not include the votes cast in state and local elections.  Meanwhile, even narrowing corruption down just to bribery, a recent study found at least 8,600 convictions between 1985 and 2015 where the lead charge was bribery of a government official.¹³⁴Nat’l Inst. of Just., A Handful of Unlawful Behaviors, Led by Fraud and Bribery, Account for Nearly all Public Corruption Convictions Since 1985 (2020).  Among the documented cases, there were 5,129 bribery cases at the federal level, 1,070 at the state level, and 2,421 at the local level.  While there was no differentiation between elected officials and government officials at large, suffice to say that there is little reason to think that voter fraud is more frequent than bribery, and thus more deserving of deference to an appearance justification.

C.  Empirical Basis for Appearance Justifications

If beauty is in the eyes of the beholder, then so too is unseemliness.  This remains true of appearances in election law.  This Section will argue that perceptions of voter fraud and/or corruption do not depend on voter ID or campaign-finance laws.  Rather, voter perceptions fluctuate in accordance with electoral successes or failures.  Because both voter ID laws and campaign-finance laws have no connection to perceptions of fraud and corruption, respectively, there is no empirical basis for greater deference to election-administration laws.

1.  There is No Connection Between Voter ID Laws and Voter Perceptions of Fraud

There is no evidence that perceptions of voter fraud are in any way affected by legislative attempts to address them through voter ID laws and other measures.  Relying on survey data from the Survey of the Performance of American Elections (“SPAE”) and the Cooperative Congressional Election Study (“CCES”), researchers found that state voter ID requirements did not improve perceptions of voter fraud, which remained the same.¹³⁵See Charles Stewart III, Stephen Ansolabehere & Nathaniel Persily, Revisiting Public Opinion on Voter Identification and Voter Fraud in an Era of Increasing Partisan Polarization, 68 Stan. L. Rev. 1455, 1473 (“In summary, there is no evidence that the passage of strict photo ID laws has led to a decrease in the belief of the frequency of voter impersonation.”).  Furthermore, the researchers found no connection between perceptions of voter fraud and voter turnout,¹³⁶Id. at 1475 (“The most recently available data, then, display no evidence that either beliefs about the frequency of voter fraud or photo ID laws designed to combat voter fraud have any relationship to or effect on turnout or intentions to vote.”). which is supported by other studies as well.¹³⁷See Enrico Cantoni & Vincent Pons, Strict ID Laws Don’t Stop Voters:  Evidence from a U.S. Nationwide Panel, 2008-2018 25 (Nat’l Bureau of Econ. Rsch. Working Paper No. 25522, 2021) (“[W]e find the laws had no significant impact on the perceived occurrence of voter impersonation, multiple voting, and non-citizen voting.”).  While their research is mainly descriptive, one potential explanation may lie in the researchers’ finding that voters often have no idea what the ID requirements are.¹³⁸See Charles Stewart III, Stephen Ansolabehere & Nathaniel Persily, Revisiting Public Opinion on Voter Identification and Voter Fraud in an Era of Increasing Partisan Polarization, 68 Stan. L. Rev. 1455, 1482 (“Roughly a third of all people are not sure what ID is required, a finding that is as true in states with no document required as it is in states where photo ID is required.  In states that require photo ID in order to vote, only 57% of people know that is the law, while 43% either do not know or say that no such documentation is required.”).  This undermines the justification for the Court’s jurisprudence of appearances, which relies on the notion that an appearance of fraud would impede participation in the democratic process.¹³⁹See supra pp. 235–36.

Instead, partisanship is a stronger explanation for the perception of voter fraud.  Simply put, voters are assured that their votes are counted when their preferred candidate wins.¹⁴⁰Michael W. Sances & Charles Stewart III, Partisanship and Confidence in the Vote Count: Evidence from U.S. National Elections Since 2000, 40 Electoral Stud. 176, 181 (2015) (“[A]mong those who voted for the winning candidate, confidence in one’s own vote increases by about 20 percentage points after an election. Among those who voted for the loser, confidence declines slightly, by about 2 percentage points.”).  Comparing Republican and Democratic voters’ confidence that their votes were counted demonstrates the point.  When George W. Bush won the presidential election in 2000 and 2004, Republican voters were more than twenty percentage points more likely than Democrats to express confidence in the counting of their vote.¹⁴¹Voter Confidence, MIT Election Data Science Lab (Apr. 2, 2021), https://electionlab.mit.edu/research/voter-confidence, [https://perma.cc/L2VM-AWPX].  In 2008, with the election of President Obama, Democratic voters’ confidence in the count surpassed that of Republican voters.¹⁴²Id.  By the 2012 reelection of President Obama, Republican voters’ confidence that their vote was counted had fallen by almost thirty percentage points compared to their 2004 totals.¹⁴³Id.  With the election of President Trump in 2016, Democratic voters’ confidence tumbled, but then jumped sixteen percentage points with President Biden’s victory in 2020.¹⁴⁴Id.   

These trends seemed to have held up this past election cycle, with some narrowing of the gap between Democratic and Republican voters.  Sixty-four percent of Republicans expressed robust confidence that the vote counts were accurate, compared to sixty percent of Democrats.¹⁴⁵MIT’s Election Data Science Lab has not published data from the 2024 election, so this data was taken from an AP-NORC poll. See Most Are Confident Votes Were Counted Accurately in the 2024 Presidential Election, Assoc. Press-NORC Ctr. for Pub. Affs. Rsch. (Jan. 3, 2025), https://apnorc.org/projects/most-are-confident-votes-were-counted-accurately-in-the-2024-presidential-election [https://perma.cc/79QM-RVFK].  It is hard to compare this data with the 2020 election given the slight differences between the questions posed and the overall methodologies, but the partisan nature of the results was clear.  In October, just before the election, the same poll found that just twenty-four percent of Republican voters were confident about the accuracy of the national vote count, compared to seventy-one percent of Democrats.¹⁴⁶Voters Have More Confidence in an Accurate Vote Count in Their Own State or Locality than Nationwide, Assoc. Press-NORC Ctr. for Pub. Affs. Rsch. (Nov. 1, 2024), https://apnorc.org/projects/voters-have-more-confidence-in-an-accurate-vote-count-in-their-own-state-or-locality-than-nationwide [https://perma.cc/V59U-DNNW].   Thus, the election of the Republican candidate correlated with a fifty-point jump in Republican voter confidence and an eleven-point drop in Democratic voter confidence.  Further, when voters answer the related question of whether elections were run well, the partisanship thesis stands strong.  Republican voters are more confident in the administration of the election by seventy percentage points compared to 2020, while Democratic voters were ten percentage points less likely to express confidence.¹⁴⁷See Voters Largely Positive About How Elections Were Conducted, in Sharp Contrast to 2020, Pew Rsch. Ctr. (Dec. 4, 2024), https://www.pewresearch.org/politics/2024/12/04/voters-broadly-positive-about-how-elections-were-conducted-in-sharp-contrast-to-2020 [https://perma.cc/5GBD-TNMA].    All this goes to say, if partisanship better explains the perception of fraud than voter ID laws, then affording greater deference to election-administration laws will not ameliorate perceptions of voter fraud.  

2.  There is No Connection Between Campaign-Finance Laws and Perceptions of Corruption

There is scant support for the connection between campaign-finance laws and perceptions of corruption.  Pooling data from three decades of surveys conducted between 1987 and 2017, researchers David Primo and Jeffrey Milyo found that state campaign-finance laws did not impact voter trust in state government.¹⁴⁸David M. Primo & Jeffrey D. Milyo, Campaign Finance and American Democracy:  What the Public Really Thinks and Why it Matters, 145 (2020) (“[W]e find no statistically or substantively positive effects of campaign finance reforms on trust in government.”).  In particular, they found that the “regulatory shock” of Citizens United, which led to the rollback of bans on independent corporate expenditures, did not reduce public trust.¹⁴⁹Id. at 150 (“Simply put, public trust in government does not seem to have crumbled in the wake of Citizens United.”).  In fact, Primo and Milyo shared evidence that confidence in government actually increased after Citizens United,¹⁵⁰Id. (“If anything, trust in the federal government increased after Citizens United (albeit in a substantively modest way).”). and that contribution limits actually had a negative effect on voter trust.¹⁵¹Id. at 145 (“This is a substantively tiny, albeit statistically significant, effect.”).  Their findings extend beyond the already powerful insight that individual campaign-finance laws have no effect on public trust.  Rather, as Primo and Milyo put it, “the effect of a deregulated system on public trust is no different statistically from a fully regulated system.”¹⁵²Id. at 147; see also id. at 144–45 (“[M]oving from a laissez-faire campaign finance regime to one with all five types of laws in effect is associated with at best an increase in trust in government of about seven one-hundredths of a standard deviation.  And remember, we cannot rule out that the effect on public trust in state government is actually 0 or even negative.”).

Primo and Milyo are not alone in their findings.  Professors Nathaniel Persily and Kelli Lammie found that public perceptions of corruption were unaffected by the existence or nature of campaign-finance laws.¹⁵³Nathaniel Persily & Kelli Lammie, Perceptions of Corruption and Campaign Finance:  When Public Opinion Determines Constitutional Law, 153 U. Pa. L. Rev. 119, 122 (2004) (“[T]rends in general attitudes of corruption seem unrelated to anything happening in the campaign finance system.”).   For example, even though “soft money” contributions quintupled between 1994 and 2002, trust in government improved by over thirty points in the same period.¹⁵⁴Id. at 148.  After the passage of the Bipartisan Campaign Reform Act of 2002, which eliminated soft money contributions, perceptions of undue influence actually increased.¹⁵⁵Id.  As the fall in voter trust after 2002 might suggest, perceptions of corruption are most strongly correlated with political and demographic factors like the popularity of the incumbent president and socioeconomic status.¹⁵⁶Id. at 173.

Persily and Lammie’s findings suggest that political affiliation drives perceptions of corruption, just as it does with perceptions of voter fraud.  The inherently partisan nature of these perceptions has normative implications that will be explored in the next Part.

IV. Suggestions for Reform

The previous Part argued that there is no neutral reason for the Court to treat perceptions of voter fraud and perceptions of corruption differently.  The differential treatment of these justifications is made all the more pressing by the partisanship driving both perceptions in the first place.  By providing greater recognition to one set of partisan perceptions than the other, the Court only fuels currently swirling doubts regarding its political neutrality.¹⁵⁷See, e.g., Nicholas O. Stephanopoulos, The Anti-Carolene Court 111, 178 (U. Chi. Pub. L. & Legal Theory Working Paper No. 734, 2019) (“Both when the Court intervenes and when it stays on the sidelines, its actions are consistent with the recommendations of conservative elites. Both the Court’s intrusions into, and its abstentions from, the political process also empirically benefit the Republican Party, whose Presidents appointed a majority of the sitting Justices.”); Lee Epstein, Partisanship “All the Way Down” on the U.S. Supreme Court, 51 Pepperdine L. Rev. 489 (2024).  Thus, this final Part will urge the Court to restore balance to its asymmetrical jurisprudence of appearances and outline three complementary ways it can do so.  The first method involves following the example of lower courts that have engaged in heightened scrutiny of appearance justifications for election-administration laws.  The next approach would more stringently enforce the “precise interest” requirement of Anderson, which ostensibly rules out appearance justifications.  The final option is to change the focus of the inquiry to the motive behind the law, mirroring the Court’s shift in its racial gerrymandering jurisprudence from an “expressive harm” theory to a focus on the existence of an impermissible motive.

The first option is to continue to recognize the appearance justifications in both contexts, but to “level down” to correct the asymmetry.¹⁵⁸See generally Deborah L. Brake, When Equality Leaves Everyone Worse Off:  The Problem of Levelling Down in Equality Law, 46 Wm. & Mary L. Rev. 513 (2004).  The Court could heed the example of some lower courts by conducting a more rigorous inquiry into appearance justifications in the election-administration sphere.¹⁵⁹See supra pp. 241–243.  All the Court need do is grant certiorari and reaffirm the reasoning of the lower court, taking one of the many opportunities to interrupt the chain of deferential steps so far taken.  For example, the Court could find that there is a heavy burden imposed on voters, as the Tenth Circuit did in Fish v. Schwab.¹⁶⁰957 F.3d 1105, 1134 (10th Cir. 2020).  Instead of denying certiorari,¹⁶¹Schwab v. Fish, 141 S. Ct. 965 (Mem.) (2020) (denying certiorari). the Court could highlight facts like the denial of thousands of voter registration applications and the lack of a “safety valve,” and/or distinguish Crawford on the basis of its incomplete factual record.¹⁶²Fish v. Schwab, 957 F.3d at 1128–29.   Like the Fifth Circuit, the Court could stress the lack of evidence for the claim that voter ID laws boost voter confidence, or like the Montana Supreme Court, it could point to statutory inconsistencies in allowing unregulated concealed-carry licenses, but not student IDs, to suffice.¹⁶³Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016); Montana Democratic Party v. Jacobsen, 410 Mont. 114 (2022).

The other option is to require states to provide more refined interests for their election-administration measures.  This approach has the benefit of cleaving to the “precise interest” requirement of Anderson-Burdick, which appearance justifications seem to violate.¹⁶⁴Anderson v. Celebrezze, 460 U.S. 780, 789 (1983); Douglas, (Mis)trusting States, supra note 123, at 554.  In prior election-administration cases like Burdick, the Court evaluated interests much more specific than voter confidence, like preventing opposition raiding, sore-loser candidacies, and unchecked factionalism.¹⁶⁵Burdick v. Takushi, 504 U.S. 428, 439 (1992).  For voter ID cases, it appears that the only justification that is both neutral and precise is preventing actual voter fraud.  Thus, by returning to the actual text of Anderson, the Court could force states to produce genuine evidence that their measures combat voter fraud, even though I am skeptical that such evidence exists.

We should note that the Court has not hesitated to heavily scrutinize legislative justifications in other cases, like Shelby County v. Holder.¹⁶⁶570 U.S. 529 (2013).  There, the Court stressed that “Congress did not use the record it compiled to shape a coverage formula grounded in current conditions.  It instead re-enacted a formula based on 40-year-old facts having no logical relation to the present day.”¹⁶⁷Id. at 554.  To be fair, Shelby County involved federalism and equal sovereignty concerns generally not at issue in the election-administration context.¹⁶⁸Id. (“Not only do States retain sovereignty under the Constitution, there is also a ‘fundamental principle of equal sovereignty’ among the States.”).  However, the Court’s willingness to require a legislature to tailor its actions to fit the real-time, real-world facts is directly applicable.

The final option involves replicating the Court’s approach in retreating from its “expressive harm” jurisprudence in racial gerrymandering cases, which used to rely on appearances to strike down redistricting plans.  In Shaw v. Reno, the Court effectively recognized that a redistricting plan could be rejected on the basis of its looks, because “reapportionment is one area in which appearances do matter.”¹⁶⁹509 U.S. 630, 647 (1993).   There, in order to draw majority-minority districts, the state legislature had to draw districts that were so facially irregular as to draw comparisons to a “bug splattered on a windshield”¹⁷⁰Id. at 635 (quoting Political Pornography—II, Wall St. J., Feb. 4, 1992, at A14).  The Wall Street Journal article colorfully described District 1 as a “bizarre district[] that make[s] no geographic sense,” representing a form of “political pornography.” Political Pornography—II, Wall St. J., Feb. 4, 1992, at A14. The article emphasized that “officeholders should represent communities instead of scattered bits of real estate.” Id. and invite humorous commentary:  “If you drove down the interstate with both car doors open, you’d kill most of the people in the district.”¹⁷¹Id. at 636 (quoting Joan Biskupic, N.C. Case to Pose Test of Racial Redistricting, Wash. Post, Apr. 20, 1993, at A4).  The Wall Street Journal put the absurdity of the district starkly:  “In one county, northbound drivers on I-95 would be in the 12th district, but southbound drivers would be in another.  The next county over, the districts would ‘change lanes,’ and southbound drivers would be in the 12th district.” Political Pornography—II, supra note 181.   The Court struck down these maps because their sole focus on race to the exclusion of geographic and political boundaries reflected and “reinforce[d] the perception that members of the same racial group . . . think alike, share the same political interests, and will prefer the same candidates.”¹⁷²Id. at 647.   The Court was further worried that the “message that such districting sends to elected representatives is equally pernicious,” as it suggested that their “primary obligation is to represent only the members of [one] group, rather than their constituency as a whole.”¹⁷³Id. at 648.  

Commentators described the Court’s reasoning as recognizing “expressive harms,” given its numerous “references to the social perceptions, the messages, and the governmental reinforcement of values that the Court believes North Carolina’s districting scheme conveys.”¹⁷⁴Richard H. Pildes & Richard G. Niemi, Expressive Harms, “Bizarre Districts,” and Voting Rights:  Evaluating Election-District Appearances After Shaw v. Reno, 92 Mich. L. Rev. 483, 508 (1993); see also id. at 506–07 (“One can only understand Shaw, we believe, in terms of a view that what we call expressive harms are constitutionally cognizable.  An expressive harm is one that results from the ideas or attitudes expressed through a governmental action, rather than from the more tangible or material consequences the action brings about.”).    The parallels to the election-administration and campaign-finance cases that are the basis of this Article are clear—in these cases, public perceptions and their perceived social effects justify heightened judicial scrutiny of legislative action. And just like the appearances of voter fraud or corruption, the expressive harm of racial gerrymandering has no empirical basis.¹⁷⁵See Stephen Ansolabehere & Nathan Persily, Testing Shaw v. Reno:  Do Majority-Minority Districts Cause Expressive Harms?, 90 N.Y.U. L. Rev. 1041, 1065 (2015) (“The ‘insiders’ game that is redistricting–and redistricting litigation–may have dramatic effects, but those effects are not ones that shape the race-based worldviews of district residents in any systematic way.”).  

But of late, the Court has retreated from the “expressive harm” theory based on district shape, and shifted its focus to whether there was evidence of an illicit legislative motive, like racial animus.  It has decided later gerrymandering cases like Miller, Easley, and LULAC by inquiring into the predominant motive or other factors like cultural coherence.¹⁷⁶See Richard L. Hasen, Racial Gerrymandering’s Questionable Revival, 67 Ala. L. Rev. 365, 371–73 (2015) (describing how the Court’s analysis in gerrymandering cases shifted from district shape to factors like predominant motive and cultural coherence).   For instance, just last term, the Court emphasized that a plaintiff asserting a racial-gerrymandering claim “must show that the State ‘enacted a particular voting scheme as a purposeful device to minimize or cancel out the voting potential of racial or ethnic minorities.’”¹⁷⁷Alexander v. South Carolina State Conf. of the NAACP, 602 U.S. 1, 38 (2024) (quoting Miller v. Johnson, 515 U.S. 900, 911 (2015)).  

The Court could follow this approach to remedy its election-administration jurisprudence.  To take the most prominent election-administration example, it seems clear that voter ID laws are driven by partisan interest in electoral gains.¹⁷⁸See Douglas, (Mis)Trusting States, supra note 123, at 595–98.   Several Supreme Court cases have recognized partisanship as an invalid justification when it is the sole or predominant motive.¹⁷⁹See, e.g., Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 203 (2008) (“It is fair to infer that partisan considerations may have played a significant role in the decision to enact SEA 483.  If such considerations had provided the only justification for a photo identification requirement, we may also assume that SEA 483 would suffer the same fate as the poll tax at issue in Harper.”); Anderson v. Celebrezze, 460 U.S. 780, 792–93 (1983) (“[I]t is especially difficult for the State to justify a restriction that limits political participation by an identifiable political group whose members share a particular viewpoint, associational preference, or economic status.”).  While the Court ruled in Rucho that partisan gerrymandering was a nonjusticiable political question, that opinion was clearly limited to the gerrymandering context.¹⁸⁰Rucho v. Common Cause, 588 U.S. 684, 718 (2019) (“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.”).  Thus, a potential shift to a motive inquiry would ensure that the Court does not uphold election-administration measures like voter ID laws and mail-in ballot restrictions when the facts show that they are driven wholly by partisanship.  In so doing, the Court would move away from the reflexive deference of its election-administration jurisprudence and thus address the asymmetry in its jurisprudence of appearances. 

Most broadly, the Court’s shift from an appearances analysis to a motives inquiry in its racial-gerrymandering jurisprudence shows that it would not be too heavy a lift for the Court to change its jurisprudence of appearances in election-administration and campaign-finance cases. Because the evolution of a doctrine is different from the overturning of a doctrine, there should be no stare decisis issues presented by the shift.  But even if stare decisis concerns are somehow implicated, the Court has clearly been willing to overturn key components of its election law jurisprudence in cases like Shelby County and Citizens United.¹⁸¹Shelby County v. Holder, 570 U.S. 529 (2013) (striking down the coverage formula of Section 4(b) of the Voting Rights Act of 1965, thus effectively gutting Section 5); Citizens United v. FEC, 558 U.S. 310 (2010) (striking down bans on independent corporate campaign expenditures).

Conclusion

This Article has argued that the Supreme Court has engaged in reflexive deference to appearance justifications in the election-administration context while subjecting appearance justifications in the campaign-finance context to heightened scrutiny.  This asymmetry, the Article contends, can be mitigated through changes to the Court’s current approaches to interpreting facts, analyzing motives, and recognizing state interests.  Nevertheless, beyond its immediate relevance to election law doctrine, the Court’s jurisprudence of appearances has broader implications for the debate over the appropriate role of the Court in the electoral process.  By allowing for unconstrained judicial fact-finding and speculative reasoning, the Court’s jurisprudence of appearances demonstrates the pitfalls of entering the political thicket.  In this unfamiliar terrain, a judge faces special temptation to serve as the “knight-errant roaming at will in pursuit of his own ideal of beauty or goodness.”¹⁸²Benjamin N. Cardozo, The Nature of the Judicial Process 141 (1921).

* J.D. Candidate, 2026, Yale Law School.  Sincere thanks to John Infranca, my election law professor, for his guidance and insight as I developed this idea last year.  I also thank Paloma O’Connor for her suggestions at early stages of drafting.  Finally, I am grateful to Thomas Wallace and the lovely folks at the Fordham Law Voting Rights and Democracy Forum for their excellent feedback and assistance.  All errors and omissions are wholly mine.

References:

• 1
  See Ciara O’Rourke, No, Joseph Stalin Didn’t Say This Statement About Elections, PolitiFact (Mar. 27, 2019), https://www.politifact.com/factchecks/2019/mar/27/viral-image/no-joseph-stalin-didnt-say-statement-about-electio [https://perma.cc/823Y-DCY2]; Mariah Timms, Fact Check:  Stalin Likely Didn’t Say Quote About ‘Those Who Decide the Votes Count Everything’, USA Today (Nov. 11, 2020), https://www.usatoday.com/story/news/factcheck/2020/11/10/fact-check-quote-vote-counting-misattributed-joseph-stalin/6190020002 [https://perma.cc/59DR-4PRZ].
• 2
  See, e.g., Samuel J. Abrams & Amna Khalid, Are Colleges and Universities Too Liberal?  What the Research Says About the Political Composition of Campuses and Campus Climate, Heterodox Acad. (Oct. 21, 2020), https://heterodoxacademy.org/blog/are-colleges-and-universities-too-liberal-what-the-research-says-about-the-political-composition-of-campuses-and-campus-climate%5Bhttps://perma.cc/NNN2-A87U%5D (reviewing several studies to conclude that “the data clearly illustrate that liberals are overrepresented in the faculty as well as among the students and administrators”). But see Naomi Oreskes & Charlie Tyson, Is Academe Awash in Liberal Bias?, Chron. of Higher Educ. (Sept. 14, 2020), https://www.chronicle.com/article/is-academe-awash-in-liberal-bias [https://perma.cc/7EYD-BTRG] (contending that “available data do not support claims that university professors are extremely leftist, that a majority of students are being educated by left-wing professors, or that academe is biased against conservatives” and that widespread belief to the contrary is driven by the “right-wing media”).
• 3
  460 U.S. 780 (1983).
• 4
  504 U.S. 428 (1992).
• 5
  Anderson, 460 U.S. at 782–83.
• 6
  Id. at 789.
• 7
  Id.  
• 8
  Id.
• 9
  Burdick, 504 U.S. at 433–34, 438–39, 441.
• 10
  Id. at 430.
• 11
  Id. at 434 (internal quotation marks omitted).
• 12
  Id. at 439.
• 13
  Id. at 440.
• 14
  Id. at 435–36.
• 15
  See Joshua A. Douglas, A Vote for Clarity:  Updating the Supreme Court’s Severe Burden Test for State Election Regulations that Adversely Impact an Individual’s Right to Vote, 75 Geo. Wash. L. Rev. 372, 377–78 (2007) (“[S]ince the decision in Norman v. Reed, the Supreme Court never again ruled that a regulation imposed a severe burden on voters’ rights.”).  Norman was handed down several months before Burdick.  A thorough Westlaw search did not reveal any change in the situation since 2007.
• 16
  479 U.S. 189, 194 (1986).
• 17
  Id. at 195.
• 18
  See, e.g., Timmons v. Twin Cities Area New Party, 510 U.S. 351, 358–64 (1997); Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 452–58 (2008); Clingman v. Beaver, 544 U.S. 581, 591–93 (2005).
• 19
  See, e.g., Timmons, 510 U.S.at 369–70; Washington State Grange, 552 U.S. at 458–59; Clingman, 544 U.S. at 594–97.
• 20
  See, e.g., Munro, 479 U.S. at 195 (interpreting Storer v. Brown, 415 U.S. 724 (1974), which upheld a California law banning ballot access to independent candidates who had been affiliated with a political party within the previous year, as providing “no indication that we held California to the burden of demonstrating empirically the objective effects on political stability”).
• 21
  Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008).
• 22
  Id. at 187–88.
• 23
  Id. at 216–17 (Souter, J., dissenting).
• 24
  Id. at 212–15.
• 25
  Id. at 202–03
• 26
  Id. at 191 (“However slight that burden may appear . . . it must be justified by relevant and legitimate state interests.”).
• 27
  Id. at 197.  Crawford’s emphasis on the importance of public confidence mirrors the Court’s earlier discussion of the topic in Purcell. Purcell v. Gonzalez, 594 U.S. 1 (2006) (per curiam). The Purcell Court asserted, “Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy,” because “[v]oter fraud drives honest citizens out of the democratic process.” Id. at 4.  The Court cited Reynolds v. Sims, 377 U.S. 533, 555 (1964), a case establishing the one-person, one-vote principle in response to malapportionment, for the proposition that “[v]oters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised.” Id.
• 28
  See, e.g., Democratic Nat’l Comm. v. Wis. State Legislature, 141 S. Ct. 28, 31 (2020) (Kavanaugh, J., concurring in denial of application to vacate stay) (“That important principle of judicial restraint not only prevents voter confusion but also prevents election administrator confusion—and thereby protects the State’s interest in running an orderly, efficient election and in giving citizens (including the losing candidates and their supporters) confidence in the fairness of the election.”); Id. at 30 (Gorsuch, J., concurring in denial of application to vacate stay) (“Last-minute changes to longstanding election rules risk . . . eroding public confidence in election outcomes.”). See Richard L. Hasen, Reining in the Purcell Principle, 43 Fla. St. U. L. Rev. 427 (2016), for discussion and criticism of the Purcell rule, which the two quotes cited above support. 
• 29
  594 U.S. 647 (2021).
• 30
  Id. at 662.
• 31
  Id.
• 32
  Id. at 681.
• 33
  Id. at 685.
• 34
  Comm’n on Fed. Election Reform, Building Confidence in U.S. Elections 46 (2005), https://www.eac.gov/sites/default/files/eac_assets/1/6/Exhibit%20M.PDF [https://perma.cc/6C4A-38HQ].
• 35
  Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989, 1037 (9th Cir. 2020).
• 36
  Id.
• 37
  Id.; see Thornburg v. Gingles, 478 U.S. 30, 44–45 (1986) (describing nine factors relevant to determining if there is a violation of Section 2 of the Voting Rights Act of 1965, as specified by the Senate report accompanying the 1982 amendments).
• 38
  Brnovich, 594 U.S. at 686.
• 39
  Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 235 (2008) (Souter, J., dissenting)
• 40
  Id. at 226 (“[T]he State has not come across with a single instance of in-person voter impersonation fraud in all of Indiana’s history.”).
• 41
  Id. at 235 (“[T]he State has come up with nothing to suggest that its citizens doubt the integrity of the State’s electoral process, except its own failure to maintain its rolls.”).
• 42
  Id.
• 43
  Id.
• 44
  Id.
• 45
  Id.
• 46
  830 F.3d 216 (5th Cir. 2016).
• 47
  Id. at 227.
• 48
  478 U.S. 30, 47 (1986).
• 49
  Id. at 44–45 (citing S. Rep. No. 97-417, at 28–29 (1982)).
• 50
  Id. at 45.
• 51
  830 F.3d at 262 (“[A] tenuous fit between the expressed policy and provisions of the law bolsters the conclusion that minorities are not able to equally participate in the political process.”).
• 52
  Id. at 263.
• 53
  Id. at 264–65.
• 54
  Democratic Nat’l Comm. v. Hobbs, 948 F.3d 989, 1046 (9th Cir. 2020) (“If there is a lack of confidence in third-party ballot collection in Arizona, it is due to the fraudulent, race-based campaign mounted by the proponents of H.B. 2023.”), rev’d, Brnovich v. Democratic Nat’l Comm., 594 U.S. 647 (2021).
• 55
  Fish v. Schwab, 957 F.3d 1105, 1134 (10th Cir. 2020) (“[T]he evidence did not demonstrate that Kansas’ interest in safeguarding voter confidence made it necessary to enact the DPOC requirement.”). 
• 56
  Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1323 (11th Cir. 2019) (finding that “Florida’s interest in . . . protecting public confidence in the legitimacy of the election . . . sw[ung] decisively in favor of the DECF and the Nelson campaign,” who had challenged Florida’s (lack of) process for rejecting ballot signature matches).
• 57
  Mont. Democratic Party v. Jacobsen, 518 P.3d 58, 74 (Mont. 2022); see also N.H. Democratic Party v. Sec’y of State, 174 N.H. 312, 329 (2021) (affirming the trial court’s finding that “the State’s perceived need to protect the integrity of New Hampshire’s elections was ‘illusory’”).
• 58
  Mont. Democratic Party v. Jacobsen, 518 P.3d at 69.
• 59
  See, e.g., Greater Birmingham Ministries v. Sec’y of State for Alabama, 992 F.3d 1299, 1327 (11th Cir. 2021) (upholding an Alabama voter ID law against claims of racial discrimination because there were “valid neutral justifications (combatting voter fraud, increasing confidence in elections, and modernizing Alabama’s elections procedures) for the law’s passage.”); Frank v. Walker, 768 F.3d 744, 751 (7th Cir. 2014) (“That photo IDs promote confidence, even if they have no other effect, is widely accepted outside the field of voting.”); Ohio Democratic Party v. Husted, 834 F.3d 620, 633 (6th Cir. 2016) (“Unlike the district court, we adhere to Crawford’s approach and conclude that the State’s purpose in preventing potential fraud and promoting public confidence is in furtherance of legitimate and important regulatory interests.”).
• 60
  See, e.g., League of Women Voters of Wis. Educ. Network, Inc. v. Walker, 357 Wis.2d 360, 385 (2014) (“Act 23’s presentation requirement is a reasonable voter regulation that is supportive of the State’s significant interests in promoting voter confidence in the outcome of elections.”); All. for Retired Ams. v. Sec’y of State, 240 A.3d 45, 53 (Me. 2020) (holding that Maine’s deadline for accepting absentee ballots “serve[d] an important State interest in maintaining voter confidence in the integrity of the election”); League of United Latin Am. Citizens of Iowa v. Pate, 950 N.W.2d 204, 211 (Iowa 2020) (upholding an Iowa law preventing auditors from correcting defective absentee ballot requests, reasoning that “measures to protect public confidence in the electoral process can, on their own, offer some justification for minimally burdensome regulations.”).
• 61
  424 U.S. 1 (1976).
• 62
  558 U.S. 310 (2010).
• 63
  572 U.S. 185 (2014).
• 64
  424 U.S. 1 (1976).
• 65
  Buckley v. Valeo, 424 U.S. 1 (1976).
• 66
  Id.
• 67
  Id. at 26 (emphasis added).
• 68
  Id. at 27.
• 69
  U.S. Civ. Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 565 (1973) (“[I]t is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.”). 
• 70
  Buckley, 424 U.S. at 27.
• 71
  See supra Part I.C.   
• 72
  Buckley, 424 U.S. at 46.
• 73
  Id. at 53.  
• 74
  See supra Part I.C.
• 75
  Id. at 47.
• 76
  Id. at 53.
• 77
  FEC v. Nat’l Conservative Pol. Action Comm., 470 U.S. 480 (1985).
• 78
  Id. at 482.
• 79
  Id. at 496–97.
• 80
  Id. at 498.
• 81
  Id.
• 82
  454 U.S. 290 (1981).
• 83
  Id.
• 84
  Id. at 297.
• 85
  Id. at 298.
• 86
  See id. at 437–38.
• 87
  528 U.S. 377 (2000).
• 88
  Id.
• 89
  Id. at 389.  
• 90
  Id. at 390–91.
• 91
  Id. at 395.
• 92
  533 U.S. 431, 438–39 (2001).
• 93
  Id. at 441. 
• 94
  Id. at 457.
• 95
  Id. 458–59.
• 96
  Citizens United v. FEC, 558 U.S. 310, 357 (2010).
• 97
  Id. at 359.
• 98
  Id. at 360.
• 99
  572 U.S. 185, 207–08 (2014).
• 100
  Id. at 210–11. 
• 101
  Id. at 211–18.
• 102
  Id. at 213.
• 103
  Id. at 215.
• 104
  Citizens United v. FEC, 558 U.S. 310, 337 (2010).
• 105
  Id.
• 106
  Id. at 339.
• 107
  Id. at 338.
• 108
  Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 218 (2008) (Souter, J., dissenting).
• 109
  Id. at 220–21.
• 110
  Id. at 198.  
• 111
  Id. at 199.
• 112
  See, e.g., Conn. Gen. Stat. § 1-1h (2024).
• 113
  Id.
• 114
  See Vanessa M. Perez, Americans with Photo ID:  A Breakdown of Demographic Characteristics, Project Vote 1 (Feb. 2015), https://www.projectvote.org/wp-content/uploads/2015/06/AMERICANS-WITH-PHOTO-ID-Research-Memo-February-2015.pdf [https://perma.cc/U3NZ-GX87].  
• 115
  See Provisional Ballots, Mass. Inst. Tech. Election Data Science Lab (Mar. 27, 2024), https://electionlab.mit.edu/research/provisional-ballots [https://perma.cc/WXF3-23PB].
• 116
  See Zoltan Hajnal, Nazita Lajevardi & Lindsay Nielson, Voter Identification Laws and the Suppression of Minority Votes, 79 J. Pol. 363, 368 (2017) (“In the general elections, the model predicts that Latinos are 10% less likely to turn out in states with strict ID laws than in states without strict ID regulations, all else equal.  These effects are almost as large in primary elections.  Here, a strict ID law could be expected to depress Latino turnout by 9.3 percentage points, black turn-out by 8.6 points, and Asian American turnout by 12.5 points.”).
• 117
  See Armand Derfner & J. Gerald Hebert, Voting is Speech, 34 Yale L. & Pol’y Rev. 471, 485–86 (2016) (collecting cases); see generally Adam Winkler, Expressive Voting, 68 N.Y.U. L. Rev. 330 (1993).
• 118
  Derfner & Hebert, supra note 117, at 489; see also supra Part II.
• 119
  Joshua A. Douglas, Is the Right To Vote Really Fundamental?, 18 Cornell J. L. & Pub. Pol’y 143, 145–46 (2008) [hereinafter Douglas, Right to Vote]; see, e.g., Reynolds v. Sims, 377 U.S. 533, 561–62 (1964) (“Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society.”); Harper v. Virginia Bd. of Elections, 383 U.S. 663, 670 (1966) (“For, to repeat, wealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned.”); Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986) (“The power to regulate the time, place, and manner of elections does not justify, without more, the abridgment of fundamental rights, such as the right to vote.”).
• 120
  Winkler, supra note 117, at 337–38.
• 121
  Derfner & Hebert, supra note 117, at 476 (“When the Supreme Court classifies an activity as speech entitled to First Amendment protection, it subjects any law restricting or burdening that activity to the highest level of scrutiny.”); Citizens United v. FEC, 558 U.S. 310, 340 (2010) (“Laws that burden political speech are ‘subject to strict scrutiny.’”). 
• 122
  Douglas, Right to Vote, supra note 119, at 158 (“Thus, a reviewing court need not always use strict scrutiny to analyze an election law claim, because states are allowed to engage in ‘substantial regulation of elections.’”); Burdick v. Takushi, 504 U.S. 428, 433 (1992) (“[T]o subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest . . . would tie the hands of States seeking to assure that elections are operated equitably and efficiently.”).
• 123
  See Joshua A. Douglas, (Mis)Trusting States to Run Elections, 92 Wash. U. L. Rev. 553, 559 (2015) [hereinafter (Mis)trusting States)] (“But in the 1960s–when election law first became a distinct field–the Court questioned more vigorously a state’s underlying rationale for its election rules.”); See, e.g., Plyler v. Doe, 457 U.S. 202, 217 n.15 (1982) (“With respect to suffrage, we have explained the need for strict scrutiny as arising from the significance of the franchise as the guardian of all other rights.”); Dunn v. Blumstein, 405 U.S. 330, 336 (1972) (“But, as a general matter, ‘before that right [to vote] can be restricted, the purpose of the restriction and the assertedly overriding interests served by it must meet close constitutional scrutiny.’”); Reynolds, 377 U.S. at 562 (“[A]ny alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.”).
• 124
  Crawford v. Marion Cnty. Election Bd., 472 F.3d 949, 953 (7th Cir. 2007), aff’d, 553 U.S. 181 (2008) (“But the absence of prosecutions is explained by the endemic underenforcement of minor criminal laws . . . and by the extreme difficulty of apprehending a voter impersonator.”).  Judge Posner, writing for the majority, describes a hypothetical scenario where someone votes using an alias, and imagines the difficulty of remembering the person’s face, the ease of slipping away, and other obstacles to apprehension. See also Heritage Found., Voter Fraud, https://www.heritage.org/election-integrity/heritage-explains/voter-fraud [perma.cc/2WSQ-UDDS] (last visited May 6, 2024) (“Unfortunately, too often voter fraud goes undetected, and when it is discovered, overburdened prosecutors seldom prioritize these cases.”).
• 125
  While there are sources emphasizing the difficulty of detecting corruption, see Heywood & Rose, infra note 127, I was unable to find a source making the exact argument that it is easier to detect than voter fraud.  This is in part due to the divide between the campaign-finance literature and the election-administration literature that this Article has attempted to bridge.  In any case, to explain the asymmetrical levels of deference through ease of detection, it is logically necessary that one be easier to detect than the other.
• 126
  See Heritage Found., supra note 124 for an enumeration of nine types of voter fraud: voter impersonation, fraudulent registration, ineligible voting, duplicate voting, absentee ballot fraud, ballot petition fraud, buying votes, illegal assistance, and changing the vote tally.  The first six types fall under the category of invalid votes being counted, buying votes and providing illegal assistance fall under coercion, and changing the vote tally falls under both discounting valid votes and counting invalid votes.
• 127
  See, e.g., Paul M. Heywood & Jonathan Rose, “Close but no Cigar”:  The Measurement of Corruption, 34 J.  Pub. Pol. 507, 526 (2014) (describing efforts to develop corruption measures as a “Sisyphean task” on account of the “gap between the very conceptualization of corruption . . . and its measurement,” as well as its context- and sector-specific nature); Adam Graycar & Tim Prenzler, Understanding and Preventing Corruption 34 (2013) (emphasizing that “measuring corruption is a hugely difficult task” because “most of the traditional measurement methods of the social sciences do not apply”).
• 128
  Buckley v. Valeo, 424 U.S. 1, 27 (1976) (per curiam); cf. United States v. Myers, 527 F. Supp. 1206, 1236 (E.D.N.Y. 1981) (“[T]rafficking in corrupt political influence is extremely difficult to detect.”); United States v. Kelly, 707 F.2d 1460, 1474 (D.C. Cir. 1983) (“Corruption is ‘that type of elusive, difficult to detect, covert crime which may justify Government infiltration and undercover activities.’” (quoting United States v. Alexandro, 675 F.2d 34, 42 (2d Cir. 1982))).
• 129
  See supra pp. 241–43.
• 130
  See, e.g., Lorraine C. Minnite, The Myth of Voter Fraud (2010) (showing that voter fraud is exceedingly rare and arguing that it is actually just a partisan chimera); Justin Levitt, The Truth About Voter Fraud, 4 (2007) (“It is more likely that an individual will be struck by lightning than that he will impersonate another voter at the polls.”).
• 131
  See Minnite, supra note 130, at 12–22 for a review and refutation of numerous types of alleged voter fraud through double voting, dead voters, fake addresses, ineligible voters, improper registration, vote buying, and poll worker fraud. See also Jack Healy, Michael Wines & Nick Corasanti, Republican Review of Arizona Vote Fails to Show Stolen Election, N.Y. Times (last updated Sept. 30, 2021), https://www.nytimes.com/2021/09/24/us/arizona-election-review-trump-biden.html [https://perma.cc/J6H7-QAZA] (“After months of delays and blistering criticism, a review of the 2020 election in Arizona’s largest county, ordered up and financed by Republicans, has failed to show that former President Donald J. Trump was cheated of victory.  Instead, the report from the company Cyber Ninjas said it found just the opposite: It tallied 99 additional votes for President Biden and 261 fewer votes for Mr. Trump in Maricopa County, the fast-growing region that includes Phoenix.”); Robert Dowen & Pooja Salhotra, Texas Elections Secure Despite COVID-related “Irregularities” in 2020, Audit Finds, Tex. Trib. (Dec. 19, 2022, 7:00 PM), https://www.texastribune.org/2022/12/19/texas-elections-2020-audit-john-scott-secretary-state [https://perma.cc/WSZ5-MQG9]; Scott Bauer, Wisconsin Audit Finds Elections are ‘Safe and Secure’, Assoc. Press. (Oct. 22, 2021, 7:44 PM), https://apnews.com/article/joe-biden-wisconsin-presidential-elections-state-elections-madison-9a2f172dd8074668ded26bd5b0b41fbb [https://perma.cc/2NWR-AWWF].
• 132
  Heritage Found., A Sampling of Recent Election Fraud Cases from Across the United States, https://www.heritage.org/voterfraud [https://perma.cc/838S-DZYC] (last visited May 6, 2024).
• 133
  Rudy Mehrbani, Heritage Fraud Database: An Assessment, Brennan Ctr. For Just. (Sept. 8, 2017), https://www.brennancenter.org/our-work/research-reports/heritage-fraud-database-assessment [https://perma.cc/8CL4-SZEK].  This number does not include the votes cast in state and local elections.
• 134
  Nat’l Inst. of Just., A Handful of Unlawful Behaviors, Led by Fraud and Bribery, Account for Nearly all Public Corruption Convictions Since 1985 (2020).  Among the documented cases, there were 5,129 bribery cases at the federal level, 1,070 at the state level, and 2,421 at the local level.
• 135
  See Charles Stewart III, Stephen Ansolabehere & Nathaniel Persily, Revisiting Public Opinion on Voter Identification and Voter Fraud in an Era of Increasing Partisan Polarization, 68 Stan. L. Rev. 1455, 1473 (“In summary, there is no evidence that the passage of strict photo ID laws has led to a decrease in the belief of the frequency of voter impersonation.”).
• 136
  Id. at 1475 (“The most recently available data, then, display no evidence that either beliefs about the frequency of voter fraud or photo ID laws designed to combat voter fraud have any relationship to or effect on turnout or intentions to vote.”).
• 137
  See Enrico Cantoni & Vincent Pons, Strict ID Laws Don’t Stop Voters:  Evidence from a U.S. Nationwide Panel, 2008-2018 25 (Nat’l Bureau of Econ. Rsch. Working Paper No. 25522, 2021) (“[W]e find the laws had no significant impact on the perceived occurrence of voter impersonation, multiple voting, and non-citizen voting.”).
• 138
  See Charles Stewart III, Stephen Ansolabehere & Nathaniel Persily, Revisiting Public Opinion on Voter Identification and Voter Fraud in an Era of Increasing Partisan Polarization, 68 Stan. L. Rev. 1455, 1482 (“Roughly a third of all people are not sure what ID is required, a finding that is as true in states with no document required as it is in states where photo ID is required.  In states that require photo ID in order to vote, only 57% of people know that is the law, while 43% either do not know or say that no such documentation is required.”).
• 139
  See supra pp. 235–36.
• 140
  Michael W. Sances & Charles Stewart III, Partisanship and Confidence in the Vote Count: Evidence from U.S. National Elections Since 2000, 40 Electoral Stud. 176, 181 (2015) (“[A]mong those who voted for the winning candidate, confidence in one’s own vote increases by about 20 percentage points after an election. Among those who voted for the loser, confidence declines slightly, by about 2 percentage points.”).
• 141
  Voter Confidence, MIT Election Data Science Lab (Apr. 2, 2021), https://electionlab.mit.edu/research/voter-confidence, [https://perma.cc/L2VM-AWPX].
• 142
  Id.
• 143
  Id.
• 144
  Id.
• 145
  MIT’s Election Data Science Lab has not published data from the 2024 election, so this data was taken from an AP-NORC poll. See Most Are Confident Votes Were Counted Accurately in the 2024 Presidential Election, Assoc. Press-NORC Ctr. for Pub. Affs. Rsch. (Jan. 3, 2025), https://apnorc.org/projects/most-are-confident-votes-were-counted-accurately-in-the-2024-presidential-election [https://perma.cc/79QM-RVFK].
• 146
  Voters Have More Confidence in an Accurate Vote Count in Their Own State or Locality than Nationwide, Assoc. Press-NORC Ctr. for Pub. Affs. Rsch. (Nov. 1, 2024), https://apnorc.org/projects/voters-have-more-confidence-in-an-accurate-vote-count-in-their-own-state-or-locality-than-nationwide [https://perma.cc/V59U-DNNW].
• 147
  See Voters Largely Positive About How Elections Were Conducted, in Sharp Contrast to 2020, Pew Rsch. Ctr. (Dec. 4, 2024), https://www.pewresearch.org/politics/2024/12/04/voters-broadly-positive-about-how-elections-were-conducted-in-sharp-contrast-to-2020 [https://perma.cc/5GBD-TNMA].  
• 148
  David M. Primo & Jeffrey D. Milyo, Campaign Finance and American Democracy:  What the Public Really Thinks and Why it Matters, 145 (2020) (“[W]e find no statistically or substantively positive effects of campaign finance reforms on trust in government.”).
• 149
  Id. at 150 (“Simply put, public trust in government does not seem to have crumbled in the wake of Citizens United.”).
• 150
  Id. (“If anything, trust in the federal government increased after Citizens United (albeit in a substantively modest way).”).
• 151
  Id. at 145 (“This is a substantively tiny, albeit statistically significant, effect.”).
• 152
  Id. at 147; see also id. at 144–45 (“[M]oving from a laissez-faire campaign finance regime to one with all five types of laws in effect is associated with at best an increase in trust in government of about seven one-hundredths of a standard deviation.  And remember, we cannot rule out that the effect on public trust in state government is actually 0 or even negative.”).
• 153
  Nathaniel Persily & Kelli Lammie, Perceptions of Corruption and Campaign Finance:  When Public Opinion Determines Constitutional Law, 153 U. Pa. L. Rev. 119, 122 (2004) (“[T]rends in general attitudes of corruption seem unrelated to anything happening in the campaign finance system.”). 
• 154
  Id. at 148.
• 155
  Id.
• 156
  Id. at 173.
• 157
  See, e.g., Nicholas O. Stephanopoulos, The Anti-Carolene Court 111, 178 (U. Chi. Pub. L. & Legal Theory Working Paper No. 734, 2019) (“Both when the Court intervenes and when it stays on the sidelines, its actions are consistent with the recommendations of conservative elites. Both the Court’s intrusions into, and its abstentions from, the political process also empirically benefit the Republican Party, whose Presidents appointed a majority of the sitting Justices.”); Lee Epstein, Partisanship “All the Way Down” on the U.S. Supreme Court, 51 Pepperdine L. Rev. 489 (2024).
• 158
  See generally Deborah L. Brake, When Equality Leaves Everyone Worse Off:  The Problem of Levelling Down in Equality Law, 46 Wm. & Mary L. Rev. 513 (2004).
• 159
  See supra pp. 241–243.
• 160
  957 F.3d 1105, 1134 (10th Cir. 2020).
• 161
  Schwab v. Fish, 141 S. Ct. 965 (Mem.) (2020) (denying certiorari).
• 162
  Fish v. Schwab, 957 F.3d at 1128–29. 
• 163
  Veasey v. Abbott, 830 F.3d 216 (5th Cir. 2016); Montana Democratic Party v. Jacobsen, 410 Mont. 114 (2022).
• 164
  Anderson v. Celebrezze, 460 U.S. 780, 789 (1983); Douglas, (Mis)trusting States, supra note 123, at 554.
• 165
  Burdick v. Takushi, 504 U.S. 428, 439 (1992).
• 166
  570 U.S. 529 (2013).
• 167
  Id. at 554.
• 168
  Id. (“Not only do States retain sovereignty under the Constitution, there is also a ‘fundamental principle of equal sovereignty’ among the States.”).
• 169
  509 U.S. 630, 647 (1993).
• 170
  Id. at 635 (quoting Political Pornography—II, Wall St. J., Feb. 4, 1992, at A14).  The Wall Street Journal article colorfully described District 1 as a “bizarre district[] that make[s] no geographic sense,” representing a form of “political pornography.” Political Pornography—II, Wall St. J., Feb. 4, 1992, at A14. The article emphasized that “officeholders should represent communities instead of scattered bits of real estate.” Id.
• 171
  Id. at 636 (quoting Joan Biskupic, N.C. Case to Pose Test of Racial Redistricting, Wash. Post, Apr. 20, 1993, at A4).  The Wall Street Journal put the absurdity of the district starkly:  “In one county, northbound drivers on I-95 would be in the 12th district, but southbound drivers would be in another.  The next county over, the districts would ‘change lanes,’ and southbound drivers would be in the 12th district.” Political Pornography—II, supra note 181.
• 172
  Id. at 647.
• 173
  Id. at 648.
• 174
  Richard H. Pildes & Richard G. Niemi, Expressive Harms, “Bizarre Districts,” and Voting Rights:  Evaluating Election-District Appearances After Shaw v. Reno, 92 Mich. L. Rev. 483, 508 (1993); see also id. at 506–07 (“One can only understand Shaw, we believe, in terms of a view that what we call expressive harms are constitutionally cognizable.  An expressive harm is one that results from the ideas or attitudes expressed through a governmental action, rather than from the more tangible or material consequences the action brings about.”). 
• 175
  See Stephen Ansolabehere & Nathan Persily, Testing Shaw v. Reno:  Do Majority-Minority Districts Cause Expressive Harms?, 90 N.Y.U. L. Rev. 1041, 1065 (2015) (“The ‘insiders’ game that is redistricting–and redistricting litigation–may have dramatic effects, but those effects are not ones that shape the race-based worldviews of district residents in any systematic way.”).
• 176
  See Richard L. Hasen, Racial Gerrymandering’s Questionable Revival, 67 Ala. L. Rev. 365, 371–73 (2015) (describing how the Court’s analysis in gerrymandering cases shifted from district shape to factors like predominant motive and cultural coherence).
• 177
  Alexander v. South Carolina State Conf. of the NAACP, 602 U.S. 1, 38 (2024) (quoting Miller v. Johnson, 515 U.S. 900, 911 (2015)).
• 178
  See Douglas, (Mis)Trusting States, supra note 123, at 595–98. 
• 179
  See, e.g., Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 203 (2008) (“It is fair to infer that partisan considerations may have played a significant role in the decision to enact SEA 483.  If such considerations had provided the only justification for a photo identification requirement, we may also assume that SEA 483 would suffer the same fate as the poll tax at issue in Harper.”); Anderson v. Celebrezze, 460 U.S. 780, 792–93 (1983) (“[I]t is especially difficult for the State to justify a restriction that limits political participation by an identifiable political group whose members share a particular viewpoint, associational preference, or economic status.”).
• 180
  Rucho v. Common Cause, 588 U.S. 684, 718 (2019) (“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.”).
• 181
  Shelby County v. Holder, 570 U.S. 529 (2013) (striking down the coverage formula of Section 4(b) of the Voting Rights Act of 1965, thus effectively gutting Section 5); Citizens United v. FEC, 558 U.S. 310 (2010) (striking down bans on independent corporate campaign expenditures).
• 182
  Benjamin N. Cardozo, The Nature of the Judicial Process 141 (1921).