A Nebraska Senator has introduced a bill to require photo identification for voting, not because voting fraud is an actual problem, but because Nebraskans perceive there to be such fraud, whether it exists or not. The New York Times wrote a recent story about various Republican state legislators who are taking up this new rationale for voter identification legislation. The reporter’s implicit message is that such a justification is flimsy. And I tend to agree. If voting is a fundamental right protected by the Constitution, legislation should burden its exercise only to address actual harms, not some people’s impressions of reality. Thus, the legality of these laws should turn on the question of actual voter fraud and the utility of voter identification in curbing it.
But the Times reporter never mentions that the Supreme Court itself has justified campaign finance law on a very similar perception rationale. Since Buckley v. Valeo, legislatures are permitted to regulate campaign expenditures and contributions, which the Court recognizes as protected by the First Amendment, if doing so is needed to avoid corruption or the “appearance of corruption.”
Why should perceptions justify restrictions on free speech rights and not voting rights?