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Difference Between Election Fraud And Voter Fraud
Election Fraud
The presence of fraud in the electoral system significantly undermines the integrity of the electoral process and calls into question the health and legitimacy of our democracy (Minnite & Callahan, 14). Election results that do not reflect the genuine will of the entire polity challenge the basic principle that our democratic government derives its legitimacy from the consent of the people. Electoral fraud in the initiative process is particularly pernicious because it (1) increases the likelihood of tainted or inaccurate electoral outcomes, (2) raises suspicions among voters as to the legitimacy of the process, and (3) threatens the role of an initiative as a direct expression of the electorate's view on a particular issue or policy. If the results of an election are inaccurate due to voter deception, the election will produce a result that fails to reflect the will of the people.
An electorate that perceives fraud as an endemic presence in the electoral system--based on either their own experiences or the prevalence of allegations elsewhere--is likely to lose faith in the accuracy of an election's results, regardless of the fraud's actual effect on the outcome of the election. For example, following allegations of fraud and tainted results in the 2004 presidential election, several polls revealed that portions of the electorate questioned the legitimacy of the electoral process (Hasen, 937, 942). In one survey following that election, a full two-thirds of African Americans questioned the fairness of the electoral process.
Ballot initiatives occupy a unique, though perhaps misplaced, position as a direct expression of the electorate's view on a particular issue or policy. They create an avenue for citizens to directly enact laws and amend the constitution on issues that may be politically unpalatable to the elected representative government. There is, however, considerable debate over whether ballot initiatives are a beneficial tool for good public policy, particularly where they seek to amend the constitution. And although there is significant doubt as to whether initiatives adequately reflect the policy choices of the populace, they are generally viewed as an increasingly utilized mechanism for ensuring that the policy wishes of the majority of voters in a given jurisdiction are expressed and, where possible, enacted.
This unique role and power of the ballot initiative as a direct voice of the voters amplifies the effects of the presence of fraud or deception at any part of the process. Importantly, the ballot initiative process is not one of candidates seeking to sway voters with half-truths about what policies they will pursue if elected or nominated, nor is it one of individuals voting in the name of another person or otherwise seeking to use deception to elect or defeat a candidate. It is instead a scenario by which the actual law or constitution of the state or jurisdiction is directly altered as a result of the election. If voters are deceived about what policy they are supporting, rejecting, or petitioning to place on the ballot, or if they are led to believe that an initiative would bolster a particular policy when, in actuality, it would eliminate a policy, the result is that a law may be enacted or the state constitution amended based upon an illegitimate reflection of the will of the people.
The above concerns regarding the effects of fraud and misrepresentation are no less problematic when they occur in the signature-gathering phase of the initiative process. Some argue that the manner in which an initiative gets on a ballot is less important, and therefore should be subject to less scrutiny, than the manner in which voters are asked to endorse or reject an initiative already on the ballot. This distinction, however, fails to recognize the vital roles that the signature-gathering process, the petitioners, and the signatories themselves play in the overall use of an initiative to amend policy or state constitutions. A primary reason for requiring that an initiative or proposal receive a certain number of signatures before it is placed on the ballot is so that there is some evidence of strong and significant support for the policy change.
Such evidence may be misleading if several signatures are gathered from citizens deceived into thinking they are supporting a policy that the initiative seeks to eliminate. In addition, the ultimate success of the initiative once it reaches the voters often depends on how the proposal is worded and how the petitioners represent it during the signature-gathering phase. Petitioners have the unique power to frame the issue and, at all stages, are able to characterize it for the voters. As the district court emphasized in Operation King's Dream, petitioners share that same responsibility in framing the issue during the signature-gathering phase as the initiative campaign does in the election phase.
The importance of the signature-gathering phase was emphasized in the Supreme Court's opinion in Meyer v. Grant, when the Court described the circulation of an initiative petition as inherently involving "both the expression of a desire for political change and a discussion of the merits of the proposed change."
There remain some limits to the range of issues that can be enacted via the initiative process. For one, they typically must not violate the U.S. Constitution, or any federal statute, and therefore are susceptible to court challenges before or after enactment, which can be costly. Proposals are also expensive, and it is often necessary that initiative committees raise hundreds of thousands of dollars before their proposed statutory or constitutional change is considered viable.
Voter Fraud
Today, voter fraud is largely a thing of the past. Yet its memory remains an important part of the American consciousness and is frequently cited by politicians as their major reason for opposing such reforms as postcard and election day registration.
The institution of registration requirements in the early part of the twentieth century was part of the Progressive movement to provide for a more open and fairly run government. At the time, Progressive lawmakers were more concerned with the problems of voter fraud than they were with ensuring maximum voter participation. Cases such as West Virginia's 159,000 votes being cast by 147,000 eligible voters in 1888 were not much out of the ordinary.
The court accepted the proposition that the Voting Rights Act applied to the initiative petition process, and that the acts of the petitioners were covered as state action under section 2 of the Voting Rights Act. The opinion also explicitly admonished the Michigan state courts, the Board of Canvassers, Secretary of State, Attorney General, and Bureau of Elections for not taking the "allegations of voter fraud seriously." While the court found that the MCRI campaign engaged in "well-documented acts of [voter] fraud and deception," it also found that the campaign "targeted all Michigan voters for deception without regard to race." Therefore, in the absence of a "[federal] anti-voter fraud statute," the court reasoned, the "defendants' conduct, though unprincipled, did not violate the [Voting Rights] Act." The court explained that the plaintiffs "established voter fraud but have not established the inequality of access necessary to establish a violation" of the Voting Rights Act, emphasizing that "the MCRI sought to deceive and in fact deceived both minority and non-minority voters in order to obtain their signatures."
Works Cited
Minnite, L. & David Callahan, Demos, Securing The Vote: An Analysis Of Election Fraud 14 (2003)
Hasen, Richard L. Beyond The Margin Of Litigation: Reforming U.S. Election Administration To Avoid Electoral Meltdown, 62 Wash. & Lee L. Rev. 937, 942 (2005)
