Nor can voter fraud prosecutions be used to measure the overall scope of fraud. That reasoning was roundly rejected by the 7th U.S. Circuit Court of Appeals in
Crawford v. Marion County Election Board, a decision that the Supreme Court affirmed when it upheld Indiana’s voter ID law. The 7th Circuit opinion noted:
But the absence of prosecutions is explained by the endemic under-enforcement of minor criminal laws (minor as they appear to the public and prosecutors, at all events) and by the extreme difficulty of apprehending a voter impersonator. He enters the polling places, gives a name that is not his own, votes, and leaves. If later it is discovered that the name he gave is that of a dead person, no one at the polling place will remember the face of the person who gave that name, and if someone did remember it, what would he do with the information?
As the 7th Circuit said, such fraud “has a parallel to littering, another crime the perpetrators of which are almost impossible to catch.”
When a lawbreaker is “almost impossible to catch,” states are faced with two options, according to the court: States may “impose a very severe criminal penalty” or “take preventative action, as Indiana had done by requiring a photo ID.” And that law has been in place for more than a decade, with none of the problems critics predicted.