Fearing Fear Itself: Photo Identification Laws, Fear of Fraud, and the Fundamental Right to Vote
In his first inaugural address, President Franklin Roosevelt assured the American people that "the only thing we have to fear is fear itself." President Roosevelt's famous statement begs the question, however, of why we should fear fear itself. What, or whom, does fear harm? When faced with the presence of fear, society must consider what steps it is willing to take and what it is willing to give up in order to address that fear. These considerations become particularly acute when the government uses the existence of fear as a rationale for legislation. The propriety of fear-based lawmaking is questionable, since fear is often unreasonable, malleable, and vague.
This debate has recently arisen in the context of state laws that require individuals to present photo identification in order to vote. While proponents generally say that identification requirements are necessary to prevent in-person voter fraud, they have also argued that such laws are necessary to address voter fear. Without photo identification laws, proponents contend, voters will fear that fraud is occurring at the polls. Indeed, states have made this argument even in the absence of any evidence of actual in-person voter fraud. In Crawford v. Marion County Election Board, the Supreme Court accepted the State of Indiana's argument that addressing fear of fraud is a state interest with "independent significance" apart from the interest in halting actual fraud. In dicta in Purcell v. Gonzalez, the Court likewise expressed approval of laws designed to calm "[v]oters who fear their legitimate votes will be outweighed by fraudulent ones."
Joel A. Heller,
Fearing Fear Itself: Photo Identification Laws, Fear of Fraud, and the Fundamental Right to Vote,
62 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol62/iss6/5