A taste for conspiracy and high intrigue will be well satisfied by a tour through the "vote fraud" controversy.  By comparison, campaign finance is strictly second-drawer dinner theater, having nothing much to put up against its competition on the Fraud Channel.  Money-In-Politics has nothing like Fraud’s fly-by-night but shuttered-by-morning organizations (American Center for Voting Rights), no charges of personal (personnel) conflicts like those apparently routine in the Justice Department, no reports furtively changed and its authors silenced as we have seen at the EAC where the "Free Tova Wang" movement was born.  Campaign finance is all gassy moral rhetoric and low political dealing.  Voter fraud can fill the House and keep them in their seats.

     It befits the art form that the law should track the trail of wrong-doing.  A recent Harvard Law Review Note argues that indeed it should, that courts should scout for political self-interest (chicanery) in the enactment of restrictions of voters.  Redistricting is said to be a case of politicians choosing their voters.  Voter fraud politics reveals the politicians transformed into assassins who bump off (the rolls) their voters in preference to just moving them to another jurisdiction.  The Note's author believes that courts should consider evidence of political motive trumping policy and entrenchment winning out over bipartisan support.  They should examine, along with purpose, effects, "peeking" to see if a plan with apparent malign purpose met with any disenfranchising success.

     One of the virtues of this approach is that this sinister project is, in fact, what observers of voting fraud politics worry about.  Even courts, like the dissent in the Crawford case, are quite open about their suspicion of motive.  The Crawford dissent transcended suspicion and located, in plain view, conclusive evidence of one party victimizing the voters of the other.  With this political mugging going on, loudly, in the background, it is a bit much to expect that the courts will ignore it and good reason to discourage them from closing their eyes to it.

     The author of the Note believes that attention to discreditable purpose is far better than the pointless suppositions about the evidence, or lack of evidence, that have so far made courts look silly.  Judge Posner has said that there really can be no evidence, and that therefore the legislator can assume that it exists beyond discovery.  The Supreme Court did Posner one better, holding in Purcell v. Gonzalez that voters simply assume the existence of fraud and could become so distressed by this fantasy that they might forego voting at all or believe that their ballot has been nullified.  In short, voter fraud disenfranchises voters, but it happens that these are voters fully eligible and able to vote, whose torrid imaginations keep them away the polls.

     The Note is right:  a bit of judicial attention to the political facts of life would be welcome relief from a jurisprudence that is collapsing into farce. 

     Strange, then, that the same Note would hold up as an example of this fearless review the courts’ engagement with campaign finance.  Here is a field in which, for well over a century, motive explains more than any other factor why legislatures act as they do.  The Note thinks that the Court had no cause for concern about motive, no evidence of entrenchment or self-dealing by the law’s sponsors.  Note at 1985, n. 46. 

     By this Note author’s perspective, McCain-Feingold was "bipartisan," which is apparently the highest compliment to be paid to an enactment supported by the vast majority of one party and small numbers of others.  The author seems impressed also by the deliberative quality of the debate, measured by the "years of advocacy."  Of course, once those years culminated in Congressional debate, the argument was kept lean:  the debate lasted all of one day in the House and only required more time in the Senate so that elected officials had the time to approve higher contribution limits for their campaigns and protections against millionaire opponents.

     But back to fraud.  Experts like Rick Hasen have qualms about focusing judicial inquiry on bad intent.  Hasen argues for a balancing test, conducted carefully and not only with a rhetorical varnish.  The courts would evaluate the effect of a law and, if finding it severe, "carefully balance those bad effects against the stated and proven interests of the state in election law."  Hasen at 880.  Hasen is confident that judges would see through the sham "interest" and that, because they will have to defend their positions, they will "have less room for subconscious favoring of particular sides in a dispute or, worse, for partisan decision-making."  Id. at 881.  Bad intent won’t slip their notice, not if the courts are scrutinizing with due care the state’s assertion of its interests.  Intention or purpose won’t, however, be the pre-determined object of their inquiry.

     Hasen’s case is thoughtfully made, and it holds the reader’s attention for as long as the world outside, where voter fraud politics is played, does not intrude.  As soon as it does, the bitter realities of intention are not easily put out of mind, and it is hard to imagine that they will not come to dominate and direct any "balancing" conducted with even the highest care.  We are talking so much about the anti-fraud movement—it fascinates as it does, filling all the available seats and now inspiring a line of promotional merchandise—because it is an irresistible story about intentions.  The courts shouldn’t want to miss it.

Bob Bauer