Electoral Fraud or Fraudulent Rhetoric: An Analysis of Jurisprudential and Political Arguments Over Voter Photo Identification Laws

Abstract

This paper argues that there are consistent rhetorical frameworks employed by politicians and judges who take opposite stances on the question of whether procedural laws relating to voting should be made or be permitted to be made more stringent, versus those who want the procedural requirements left alone or made simpler. Advocates of more stringent laws emphasize the rhetoric of individual choice and capacity, while their opponents often focus on the issue of interest group balancing and differential impact of procedural voting laws on particular groups within society. These frameworks are used to illuminate the debate over controversial voter photo identification laws in both the political sphere and the legal sphere. In the latter case, the central focus is on the Supreme Court’s recent opinion in Crawford v. Marion County which upheld Indiana’s photo identification law, and whether the identified rhetorical dichotomy suggests possible room for future as-applied challenges to such laws. In addition to presenting and elaborating on the rhetorical dichotomy and its impact on the voter identification debate, this paper draws connections between that dichotomy and other voting laws, as well as the census sampling debate and Voting Rights Act litigation. It also questions whether the participants in these debates have argued in good faith.