In anticipation of the impending midterm elections, officials from various Tea Party affiliated groups are concerned that Republicans are losing elections because of voter fraud. Dick Armey, former Republican Congressman, recently asserted that up to 3% of the votes Democrat’s received in 2008 was illegitimate.

Ignoring for a moment that most voting experts refute these claims, the debate is interesting for several reasons. First, it shows the ever-increasing role the Tea Party plays in the Republican Party, a dynamic certain to have a huge impact in November. This broad discussion, however, has been extensively covered by the national news media, so we don’t need to get into it now.

Second, it illustrates the importance of conducting fair and open elections. If these claims have any basis in fact, the implications would be staggering.  The 2008 election cycle fundamentally altered the direction of local, state and national politics, as Democrats dominated, even in traditionally Republican districts. If for some reason that move was illegitimate, it would change our view of the direction American politics. Perhaps that is what these claims are really all about – the Tea Party questioning whether 2008 was really an indication that the country moving to the political left.

Most importantly, this debate forces us to consider the integrity of our election process and how to maintain that integrity. As we speak, several states are either debating or have recently passed strict voter identification laws, including Texas and Ohio. Claims like the one made by Mr. Armey, factual or not, arise from the legitimate concern of who is voting and, in some cases, how much they are voting

Inevitably, court challenges quickly arise from these new laws.  Georgia recently passed their own voter legislation, and it is being challenged in the state courts. The Georgia Democratic Party launched the lawsuit in July, attempting to stay enforcement until after the July 13 primaries.

Indiana passed a law in 2005 which requires every voter to present a valid photo ID issued by either the state or federal government in order to vote.  It was quickly challenged in court, and reached the Supreme Court last year. The Court upheld the law in Crawford v. Marion County Election Board, but some believe that laws of this nature will inevitably disenfranchise the elderly and minority voters. Their reasoning is based in the contention that many do have not have access to the underlying documents (birth certificates, social security cards, etc) necessary to procure the types of IDs accepted at the polls. Just weeks after the Court upheld the law, a separate challenge was brought, claiming the law was violation of the state Constitution.

Not surprisingly, these debates are mostly about winning elections. The right is worried too many people are voting – namely illegal immigrants, convicted criminals, union members seeking to vote multiple times, etc. The left, however, is nervous that restrictive voter legislation will result in registered voters being effectively barred from the polls. I don’t have to tell you that minorities and immigrants tend to vote for Democrats and have significant impact at the polls. In fact, most of these challenges are launched either by the Democratic Party or organizations that lean left. (The Supreme Court ruled in Crawford that political parties are able to bring such lawsuits.)

As we look ahead to the important midterm elections, we are forced to strike a balance between these two opposing arguments. Was the voter fraud in the last election as widespread as some are alleging? Did it make a difference in the outcome? I can’t answer that, but I do know that ensuring that only those registered get to vote should be an important goal in 2010. While the Tea Party’s claims are mostly unfounded (look here for information on the various studies concerning voter fraud), their involvement at the local and state levels to monitor the election process may not be such a bad thing.

Conversely, what are we supposed to make of these strict election laws? There is a substantial state interest in making sure that only registered individuals are voting, but how can we limit fraud without disenfranchising some who have a legitimate right to vote? These are complex questions that state legislatures and election boards across the country are having difficulty reconciling. Even if they are able to set a standard, it must pass court muster as well, as we have seen that these new laws are quickly challenged in the courts.

Setting aside the claims about the past and getting back to the issue at hand, does the Tea Party have any reason to be concerned about potential voter fraud? While there are a lot of concerns about the Tea Party and the effect they will have on the future of American politics, their desire to be involved at the local level to prevent large-scale voter fraud is not one of them.

Samuel Mann is a first-year student at William & Mary Law School.


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