Gitlin-Adam

The subjective approach also has several advantages from the perspective of judicial
administrability. First, as with the expression of other fundamental rights, such as the right to
privacy, the right to cast a vote unimpeded is necessarily somewhat nebulous, and it may be
more intuitive first to ascertain how the voter perceives the facts, and then consider how the
rights of others should be limited in recognition of the primacy of how voters feel in the exercise
of the franchise.
Second, increased focus on the voter avoids having the analysis turn as much on
establishing intent, a difficulty in many intimidation cases. The courts have addressed the
problem of showing scienter by giving greater weight to circumstantial evidence of intimidation,
but this practice creates problems of its own (Swirsky 2002).
Third, a subjective standard reduces the weight that should be assigned to the nexus
between the act of intimidation and voting (Stringer 2008). This is another problem that courts
have dealt with inadequately, such as in United States v. Harvey, where a court found an
insufficiently direct threat in the eviction, employment termination, and other retaliation against
African Americans who had just registered to vote.
The danger with all subjective legal standards is over-enforcement, because a voter’s
feelings are hard to second-guess. Some types of voter deception—such as, say, automated
phone calls misleading voters about the date of the election, or internet materials providing false
information about the manner of voting (Rustin-Paschal 2011)—may be dealt with better under
common-law fraud rules or, as some have suggested, more targeted legislation (Daniels 2010).
But for most other forms of intimidation, the better response to the over-enforcement
concern, rather than reverting to an objective standard, is to recognize that at a certain point the
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