It’s Not Fraud, It’s Alienated Voters
Commentary
Politico.com
November 1, 2007
Branch Rickey,
the legendary baseball executive who signed Jackie Robinson, said luck
is the residue of design. When it comes to managing voter registration,
bad luck - in the form of a fundamental right arbitrarily denied - is
the residue of misperceived risk, poor design and even worse execution.
Misperceived risk: voter fraud
Americans are quite familiar with imperfect election administration.
Human errors by election officials, technological glitches, voter
intimidation and missing ballot boxes occur somewhere, in some
election, approximately as often as it rains.
Proponents of laws that do not address these irregularities but that do
result in substantial disenfranchisement of legitimate voters, market a
misnomer and conflate the above problems with "voter fraud."
But voter fraud they are not. Voter fraud, to the extent it exists at
all, involves real people casting ballots despite knowing that they are
ineligible to vote.
As a practical matter, voter fraud involves extraordinary criminal
risk, including prison and fines, for almost zero personal gain.
Unsurprisingly, exacting scrutiny of the 2004 election in Ohio revealed
a possible voter fraud rate of 0.00004 percent. Americans are more
likely to be struck by lightning. Granted, lightning does strike, but
we're not yet ready to pass legislation requiring a dome for the
planet.
When the 2004 Washington gubernatorial election was decided by a mere
129 votes out of almost 3 million, the voter fraud marketing machine
shifted into high gear.
Yet after close examination, a state court found no evidence of fraud
or misconduct. Similarly, John McKay, then the U.S. attorney for
western Washington, probed the allegations but found nothing worth
prosecuting. As has been well-documented, his refusal to jump to
conclusions may well have cost him his job.
Poor design: managing the lists
Two laws, the National Voter Registration Act and the Help America Vote Act, establish the federal guidelines for voter lists.
Together, they direct officials to enact practices that make it easier
for eligible citizens to vote. Most pertinently, HAVA requires that
states create statewide databases of registered voters. Previously, in
most states, each county was responsible for its own lists. The idea is
good. The transition is a mess.
The complexities of the ongoing transition, which are detailed in the
Brennan Center for Justice report "Making the List," essentially divide
into two categories. Neither is likely to make the evening news - at
least not until it's too late.
The first category involves the limits of lists. Some states block
eligible voters unless they can "match" the new registrant to existing
government lists used for other purposes.
But one of the realities of large databases is that typographical
errors, maiden names for the married, married names for the divorced,
transposed fields, improperly hyphenated compound names, nicknames and
similar phenomena abound.
How
verifiably severe is this problem? The Social Security Administration
admits that 46.2 percent of submitted voter registration records fail
to match its records.
Many state databases are frequently no better. A 2004 test in New York
City attempted to match 15,000 voter registration records against the
state motor vehicle database. Almost 20 percent did not match because
of typos alone.
The second category involves people who are on the rolls but at risk of
being removed, frequently without their knowledge and often because of
similar list-matching mistakes.
Perhaps the best example is the birthday problem. Statistics students
are often surprised to learn that in a group of 23 people, it is more
likely than not that two will share the same month and day of birth.
Expand the pool exponentially and you end up with Kathleen Sullivan,
63. Sullivan allegedly voted twice in 2004 at opposite ends of New
Jersey. In fact, one woman did not drive the length of the state to
cast a second ballot. Instead, two women named Kathleen Sullivan happen
to share the same birth date and live in New Jersey.
She - or, rather, they are not alone in their predicament. Such
individuals are often targeted for purges. Raise your hand if you think
they should lose their votes.
Even worse execution: new barriers to voting
Worse still, the obscure mechanics of list management make it fertile
ground for anti-democratic schemes. In effect, certain anomalies are
too pronounced to explain away as chance.
Take Florida in 2004: A purge list of 47,000 names included several
thousand people who were actually eligible to vote. Moreover, the list
included 22,000 African-Americans but only 63 Hispanics.
Suffice it to say, that discrepancy was vastly disproportionate both to
population and to the respective pools of actually ineligible
individuals. The state eventually ceased using the flawed list.
With voter fraud again as an ostensible justification, Florida was also
one of several states - along with Ohio, New Mexico, Colorado,
Missouri, Maryland and Georgia - at the center of another trend,
stopping registration before it starts.
In 2005, the Florida legislature passed a draconian law requiring of
voter registration groups the perfect execution so patently absent in
the state's own efforts.
Rigid rules backed by steep fines had the effect of shutting down
numerous voter registration drives, including that of the League of
Women Voters, which had been registering voters in Florida for 67
years.
Finally, states are passing stringent voter ID requirements that
disenfranchise rightful voters, particularly the elderly, the poor and
minorities. As election scholar Rick Hasen has pointed out, it is not
an accident that legislatures have passed or proposed such legislation
on party-line votes.
Indeed, in a 2007 article in the Houston Chronicle, Royal Masset, the
former political director for the Republican Party of Texas, expressly
linked spurious voter fraud allegations to photo identification laws
and their expected partisan impact on legitimate voters.
Among Republicans, it is an "article of religious faith that voter fraud is causing us to lose elections," Masset said.
He doesn't agree with that but does believe that requiring photo IDs
could cause enough of a drop-off in legitimate Democratic voting to add
3 percent to the Republican vote.
Last week on Capitol Hill, the House Committee on Administration
confronted these complex challenges. In evaluating reforms, federal and
state lawmakers alike should eschew the rhetorical distraction of
"voter fraud" and employ rigorous cost-benefit analysis.
Solutions that disenfranchise legitimate voters fail that test.
Instead, proposals must be narrowly tailored to solve actual, rather
than phantom, problems. The right to vote shouldn't depend on luck. It
deserves careful design.
James Sample is counsel in the Democracy Program at the Brennan Center for Justice at the New York University School of Law.
Editor's Note: This story has been corrected. A state court, not a federal court, found no evidence of misconduct in the 2004 gubernatorial election in Washington.