Legal Commentary

As a teacher and student of election law, I am reasonably familiar with the argument that the government sometimes needs to act--even to the point of interfering with the people's constitutionally protected rights--to prevent other people from thinking, incorrectly, that government is behaving corruptly.  Most famously, at least in my areas of interest, the Court has dealt with and accepted this argument in the campaign-finance series of decisions.  The argument has also been successful in some Fifth Amendment due-process cases involving actions by judges that call into question their impartiality.  Thus, judges cannot be paid more for signing a search warrant than for denying one, and cannot rule on a case in which they have a financial interest, in part because even if the individual judge performs his job properly, the public may doubt the trustworthiness of the legal system.  As the Court has put it, "justice must satisfy the appearance of justice."

Giving the government power to act based on its estimation of appearances, however, can be tremendously destructive to principles of limited government and individual liberty.  It's also potentially manipulable, and for the same reason: all manner of behavior resembles impropriety, and proving that the actual behavior is not corrupt is beside the point.   Some people, of course, see that result as having occurred already in the campaign-finance cases, but in other areas as well government has claimed the power to prevent people from acting so that the government itself is not brought into disrepute.  I have argued in my articles that the "appearance of impropriety" argument should be insufficient to interfere with judicial candidates' campaign speech.

Most recently, this argument has re-surfaced in the voter-ID cases.  Indiana's Secretary of State is quoted in the January ABA Journal (p. 44) as saying that ID requirements "give[] confidence to the voters" and should be upheld for this reason "[r]egardless of the law's effect on fraud."  (Both quotes are from the article, but the language in only the first quote is attributed to the Secretary.)  The Supreme Court said something similar in Purcell v. Gonzalez, which also involved a challenge to a voter-ID law: "Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.  Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government.  Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised."

I think the voter-ID laws, both in general and the Indiana law challenged in the Crawford case now pending before the Court, are constitutional.  In brief, I don't see how the obligations to obtain and bring an ID card to a polling place are unconstitutionally onerous (i.e., a "severe" burden under Burdick v. Takushi), especially compared with the state's ability to set the locations and operating hours of the polling places themselves.  But if strict scrutiny applies, it would be a shame if voters' unjustified "fear[s]" of fraud were sufficient to satisfy that standard.

I wonder if what Justice Jackson said about presidential emergency powers applies as well to the appearance-of-impropriety argument: "Such power either has no beginning or it has no end."