Voting Fraud Inquiry? The Investigators Got Burned Last Time

January 26, 2017

Cross-posted from The New York Times.

For days President Trump has promoted the absurd notion that three million to five million people voted illegally in the presidential election.

On Wednesday morning, Mr. Trump went further.

When a president demands an investigation of voter fraud, what could go wrong?

Based on recent history, a lot.

Little more than a decade ago, the Justice Department made investigating and prosecuting voter fraud a major priority. When top prosecutors failed to find the misconduct and refused to make partisan prosecutions, they were fired. In the fallout, Attorney General Alberto Gonzales was forced to resign in the biggest Justice Department scandal since Watergate.

It seems like an odd bit of history to try to repeat — unless the goal is to clear the path for voter suppression.

From left, the ousted United States attorneys Carol Lam, David Iglesias, John McKay and H.E. Cummins in 2007 at a hearing of Senate Judiciary Committee. Mr. McKay was dismissed after refusing to pursue voter fraud allegations he found baseless. CreditDennis Cook/Associated Press

Let’s begin with the underlying fact: There is no epidemic of voter fraud. After Mr. Trump claimed the election was rigged, election officials from both partiesscholars, journalists and experts noted thatthere was simply no widespread fraud. Mr. Trump’s lawyers even confirmed this in their own court filings in recount efforts in Michigan.

There was no extensive voting fraud in 2002, either, when President George W. Bush’s attorney general, John Ashcroft, made finding it a top priority for the Department of Justice. And the federal prosecutors kept coming up empty. After years of trying, they had charged more people with violating migratory bird laws than voting statutes.

The White House was agitated by this failure. In October 2006, President Bush told Mr. Ashcroft’s successor, Mr. Gonzales, that he had heard about fraud in Albuquerque, Milwaukee and Philadelphia. Karl Rove, Mr. Bush’s aide, warned Mr. Gonzales he had “concerns” about voter fraud.

Soon top officials concocted a way to get results: If you can’t find the crime, fire the prosecutors. In a highly unusual move, seven United States attorneys were forced to resign, on top of two more pushed out earlier.

David Iglesias, a conservative Republican, was the United States attorney in New Mexico. Local Republicans became angry that he refused to bring corruption cases against Democrats. Shortly after the 2006 election he was dismissed. In his book “In Justice: Inside the Scandal That Rocked the Bush Administration,” Mr. Iglesias summed up his experience: “First would come the spurious allegations of voter fraud, then unvarnished legal manipulations to sway elections, followed by a rigorous insistence on unquestioned and absolute obedience and, finally, a phone call from out of the blue.

In Missouri, the United States attorney clashed with superiors when he refused to sign off on a lawsuit demanding a purge of state voter lists. After firing the prosecutor, Justice Department officials slipped a political aide into the position.

The United States attorney in Washington State, John McKay, declined to bring voter fraud charges after a close governor’s race. Summoned to a White House interview about becoming a federal judge, Mr. McKay instead found himself grilled about party activists’ accusations that he had “mishandled” the election. Instead of becoming a judge, Mr. McKay was fired. “There was no evidence,” he later told reporters about the fraud allegations, “and I am not going to drag innocent people in front of a grand jury.”

Soon scandal erupted. At one congressional hearing, Attorney General Gonzales answered “I don’t recall” or some variant 64 times. In August 2007, after his top aides quit or had been fired, he resigned.

All this should rattle the new administration. The attorney general-designate, Jeff Sessions, who unsuccessfully prosecuted black voting rights activists as a United States attorney in Alabama three decades ago, had his confirmation hearing before Mr. Trump’s Twitter eruption. He now should pledge to refrain from politicizing voting rights enforcement and resist any effort to pressure prosecutors to chase imaginary fraud.

These charges, of course, have a deeper political purpose. Many Americans now fear pervasive voter misconduct. That vague unease, aimed at minority voters, has been used to justify a new wave of laws to make it harder for many people to vote. Federal courts have blocked many of the worst new laws, finding them discriminatory or unconstitutional. Now it seems Mr. Trump and his allies may push for federal voting laws, requiring a passport, birth certificate or other proof of citizenship to register. Millions could find themselves disenfranchised.

The president of the United States is peddling conspiracy theories that undermine our democracy for political gain. Lessons from recent history suggest that the ultimate victims of such a witch hunt will be those who pursue it.

(Photo: Flickr.com)