Abstract
In recent years, the Republican Party and conservative groups have brought lawsuits that advance a novel type of voting claim, which this Article calls fraudulent vote dilution. This claim asserts that an election rule is unconstitutional because it makes it too easy to cast fraudulent ballots that, when tabulated, will dilute the strength of valid and honest ballots. With the 2024 election nearing, the Republican Party may again test fraudulent vote dilution claims in court, as it seeks injunctions to make liberal election rules stricter in ways that make it harder for Democratic voters to cast ballots. This Article advances several new descriptive and normative claims about fraudulent vote dilution. First, it clearly situates fraudulent vote dilution as a new conservative litigation weapon. Conservatives, who typically are on the defensive in voting rights cases, are developing fraudulent vote dilution to give them an offensive weapon they can deploy against liberal election rules. Second, the Article explores the relationship between fraudulent vote dilution and race. For decades, the Supreme Court has recognized vote dilution claims that protect the rights of Black voters. This Article shows that, by co-opting dilution language associated with racial justice claims, conservatives can attempt to shield their project from moral criticism and advance their goal to decenter race from voting rights disputes. Third, this Article provides an institutional analysis that examines the capacity of courts to review fraudulent vote dilution claims and identifies facets of the claims that create a high risk of erroneous judicial decisions. Finally, to guide courts and guard against judicial errors, this Article proposes three necessary elements for a fraudulent vote dilution claim.
Recommended Citation
Jason Marisam,
Fraudulent Vote Dilution,
2
Fordham L. Voting Rts. & Democracy F.
197
(2024).
Available at:
https://ir.lawnet.fordham.edu/vrdf/vol2/iss2/2