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Testimony of
Keesha Gaskins
Senior Counsel, Democracy Program
Brennan Center for Justice at NYU School of Law
Before the
Pennsylvania House State Government Committee
regarding
HB934 and the Alleged Problem of Voter Impersonation Fraud at the Polls and the Impact of Voter Identification Requirements on Voter Fraud addressing
March 21, 2011
On behalf of the Brennan Center for Justice at NYU School of Law, I want to thank you for the opportunity to speak with you today.
My name is Keesha Gaskins; I am a senior counsel with the Brennan Center. The Brennan Center is a non‑partisan public policy and legal advocacy organization that focuses on fundamental issues of democracy and justice. Among other things, we seek to promote policies that ensure fair and accurate elections and that maximize citizen enfranchisement and participation in the electoral process. The Brennan Center works to improve the security of elections without compromising the right to vote, based on the belief that electoral integrity is advanced when all eligible citizens are able to participate in elections. Our work toward these goals has included extensive research and the publication of studies and reports; assistance to state and federal policy makers and advice on electoral legislation; and — when it has been necessary — litigation to protect the fundamental right to vote.
As part of this work, we have paid particular attention to the debate over strict voter identification policies. We have commissioned research on the number of citizens who lack certain forms of documentary proof of identity and we have participated as amicus curiae in litigation over strict voter identification policies in Indiana, Georgia, Arizona and Albuquerque, New Mexico. A central facet of these efforts has been our research on allegations of voter fraud. We have analyzed claims of rampant voter fraud in order to distinguish unfounded and exaggerated tales of fraud from reliable, verified claims of election misconduct. We published the results of our analysis in a monograph entitled “The Truth About Voter Fraud,” which compiles the methodological flaws that lead to allegations of voter fraud, and debunks baseless — though often repeated — reports of voter fraud. That along with our recent publication, The Cost of Voter ID Laws: What the Courts Say, has been delivered to each of you prior to this hearing. I hope that the findings I will highlight today will be helpful as this body considers HB 934.
This Committee must determine first, the scope of the alleged problem that the proposed bill may potentially address. Second, the Committee must see whether the proposed solution actually solves the alleged problem that is presented. Finally, it must satisfy a basic question that any proposed election regulation must overcome — whether the proposed solution actually creates problems that are as bad as or worse than the one the solution is designed to address.
The Brennan Center believes that HB 934 responds to an exaggerated and largely unproven problem, and does not provide a meaningful response to the threats advanced to justify it. Also of significant concern is that In addition, the proposed legislation will expand Pennsylvania’s existing bureaucracy and create new costs that will burden, rather than improve, election administration.
In assessing the incidence of voter fraud, the Brennan Center has concluded that, unfortunately, some forms of election fraud do occur with some frequency. There have been confirmed examples of fraudulent activity involving absentee ballots.[1] Some of these incidents involve coercion of absentee voters[2]; others involve schemes — sometimes connected to particular candidates — to submit multiple fraudulent absentee ballots. None of these examples are improved or affected by the introduction of a photo identification requirement for voters on Election Day.
Conversely, our research indicates that claims of other types of voter fraud prove baseless upon inspection. This is true of the most frequently reported forms of putative voter fraud — including double voting, voting in the name of dead people, and — most importantly for the purposes of this hearing — individuals impersonating registered voters at the polls. The Brennan Center’s exhaustive research revealed that there is little to no reliable evidence of impersonation fraud.[3] And, of course, this form of fraud is the only misconduct that the new voter identification requirements in HB934 will address.
There are several reasons why reports of fraud at the polling place crumble when they’re subjected to real scrutiny.
First, many claims of impersonation fraud are based on record matching processes that are inherently flawed. Using data matching in order to identify suspected cases of voter fraud involves the comparison of computerized lists of voters with other computerized lists. Sometimes the voter lists are compared with other voter lists in an attempt to identify voters who cast ballots in more than one state. Sometimes voter lists are matched with lists of ineligible voters — such as deceased individuals or persons convicted of felonies. Unfortunately, the results of this data matching are not always reliable.
Some matching flaws result from insufficiently strict matching protocols. For example, if matching is conducted without controlling for suffixes like “Jr.,” it can indicate, inaccurately, that “John Smith, Jr.” is the same voter as “John Smith, Sr.” These problems obviously also occur when records are deemed to match if they share a middle initial, without requiring a full match of the middle name. And they occur when similar — but not identical — names are said to match.[4]
One notorious and recurring example is a 2000 investigative report in the Atlanta Journal-Constitution, claiming that “the actual number of ballots cast by the dead” was “5,412 in the past 20 years.”[5] This article did not, however, actually reveal 5,412 ballots cast by the dead, much less 5,412 instances of in-person impersonation fraud.[6] Instead, it revealed 5,412 matches of Social Security death records to voting records. And it further revealed that these matches are flawed. The reporter acknowledged that death records contain errors, listing people as dead who are actually alive, but apparently did not investigate how many of the 5,412 identified ballots suffered from this error. The reporter also acknowledged that voter records contain errors, reflecting data entry mistakes and those who sign the wrong line of a pollbook, but apparently could not or did not investigate how many of the 5,412 identified ballots suffered from this error. The reporter neither acknowledged nor apparently accounted for the statistical likelihood that a record of John Smith dying and a record of John Smith voting might in fact reflect different “John Smith”s with the same date of birth.[7] Finally, the reporter did not indicate how many of these 5,412 ballots were cast in person, rather than absentee.
Second, many erroneous reports of impersonation fraud occur when pollworkers make clerical errors, such as having a legitimate voter sign the registration card of a voter whose name is strikingly similar to the real voter’s name. ”The Truth About Voter Fraud” catalogues numerous examples of such clerical errors. As the report makes clear, after initial claims of polling place fraud are investigated thoroughly, they are very frequently revealed to be the result of understandable human error by poll workers — not any attempt to defraud the election system.
Finally, some reports of voter fraud result from mistakes by individuals who register or vote without realizing they were not eligible. The Brennan Center has collected numerous examples of these inadvertent mistakes. In Arizona, we have seen individuals in the process of becoming naturalized citizens registering after they received letters from immigration authorities telling them that their “application for citizenship ha[d] been approved” — but before they’d formally taken the oath of citizenship. In Wisconsin, we saw a citizen show up to vote and present his prisoner ID card — prominently stamped with the word “offender.” Unfortunately, the poll worker in Wisconsin let this individual cast a ballot in spite of his conviction status. But leaving aside this human error, the offender was clearly not trying to hide his status, and he was not trying to commit fraud.
Publicizing eligibility requirements and training poll workers is a more effective answer to preventing non‑citizens or felons from voting than requiring identification from every legitimate voter.
To summarize, there are plenty of since-debunked reports of voter fraud — but virtually no confirmed examples of impersonation fraud. And, notably, this isn’t for lack of trying. It’s widely known that, under the previous administration, the Department of Justice prioritized investigation and prosecution of voter fraud. But in reporting on their 5-year effort to do so, they mentioned not a single conviction for impersonation fraud. The crimes the DOJ did prosecute — campaign finance violations, voter harassment, and vote buying, among others — would not be prevented by HB 934.
There is an obvious reason why impersonation fraud — the only thing HB 934 would address — essentially never occurs: the risk of getting caught is high, the penalties are extreme, and there is hardly any payoff. Under Pennsylvania and federal law, any voter impersonator faces up to five years in prison, and fines of $10,000. For a non-citizen, deportation is added to that calculus. And there is very little incremental value to a single vote: in the vast majority of elections or referenda, a single vote will not provide the margin of victory. So there is little incentive to risk the severe penalties for the crime.
A Strict Voter ID Policy Does Not Address the Real Threats of Voter Fraud
This brings me to my next point: whether the “solution” that HB 934 proposes actually fits the problem.
As I’ve explained, the problem that HB 934 potentially could address — impersonation fraud — has been thoroughly discredited as a national problem. And we’ve not seen any credible evidence that Pennsylvania bucks this trend; impersonation fraud doesn’t occur in Pennsylvania any more than it occurs elsewhere. HB934 will not address ineligible non-citizen voting, inaccurate or ineligible voter registrations, voting with false identification or any other election problem other than voter impersonation.
In considering the issue of using state identification laws to curtail potential voter fraud, the Commission on Federal Election Reform headed by President Jimmy Carter and Secretary of State James Baker recognized the burdens on and dangers of discrimination against eligible voters inherent in state voter identification requirements. Consequently, in considering concerns of voter fraud, the Commission did not support a state-by-state system that would create opportunity for error and discrimination as well as limiting access to the polls by eligible voters.[8]
Even where strict voter identification requirements were implemented, they have not been shown to be effective in deterring fraudulent voter activity. For example, the recent and very public case of indictment of the Indiana Secretary of State Charlie White on seven felony counts, including three counts of “voter fraud” and charges of theft and perjury demonstrates that photo identification requirements for voters will not be effective against in-person voter fraud. that when someone is determined to commit voter fraud a photo identification card will not deter them. Mr. White stands accused of intentionally voting in the wrong precinct during the May 2010 Republican primary and lying about his address in order to maintain his seat on the Fisher City Council even after he moved out of the district.[9] Even if, as Secretary White maintains, it was an honest error, it was still not prevented by the implementation of the first mandatory photo identification law in the country.
There are also disturbing indications that while HB934 will not stop voter “fraud” it will affect the ability of eligible citizens to access the polls. Reliable surveys of registered voters conclude that restrictive identification laws do impact eligible citizens,[10] and that they disproportionately impact minority and elderly populations. Although there is some disagreement over the precise magnitude of the effect, even the studies with more modest results estimate an impact that would reach more than two million registered voters if applied nationwide.[11] Surveys of voting-age citizens – including eligible citizens who have not been engaged in the election process, but whom we should hope to engage – are somewhat less fully developed, but find an even more substantial effect, and similar disproportionate impact.[12]
Ultimately, enhanced voter identification requirements feel good and sound good but actually do not result in any significantly improved election security. The problems identified by bill author Rep. Daryl Metcalfe, concerning people who: "vote early, vote often or from beyond the grave” or with “get out the illegal alien/non-United States citizens voting programs”[13] could not be solved by this bill. Real election reform through voter registration modernization in connection with improved training for election judges can create the environment that would reduce election administration costs, reduce opportunities for all types of voter fraud and increase reliability and accuracy of the voter rolls would better serve the citizens of Pennsylvania than will the passage of HB934.[14]
Strict Voter Identification Requirements have Serious Cost Implications
HB934 will be costly. Pennsylvania is cutting necessary funds for education, infrastructure and other essential government services to address its $4 billion budget shortfall.[15] As HB 934 is currently drafted, Pennsylvania will have to bear the cost for: providing state identification cards for the indigent; preparation and distribution of the form regarding how and when to provide information for free state identification cards and bear the cost of lost revenue for issuance and renewal of identification cards. Similar Voter ID laws in other states carry fiscal notes that range from negligible costs to nearly $4million in the first year of implementation.[16]
In addition to costs not expressly enumerated in the proposed bill, there are obligations imposed by law that Pennsylvania will have to consider. HB 934 relies upon the use of a Pennsylvania ID card or drivers’ license to confirm identity at the polls. Because limiting free IDs to only the indigent is impermissible[17], Pennsylvania will have to bear the costs of IDs for each person that needs one in order to vote. This cost will include both renewals and issuing new IDs for eligible voters. This will result in not only the cost of paying for new identification cards, but also a significant loss of revenue to the Commonwealth. Pennsylvania will also need to ensure that the IDs are readily accessible which may include opening new ID-issuing offices or expanding existing hours.[18]
In addition, Pennsylvania will also have to undertake a comprehensive public education and outreach program well in advance of the election to ensure that voters have the information required to be able to vote.[19] Finally, there are always administrative costs and training implications in creating new election laws that Pennsylvania lawmakers must consider.
The effect of HB 934 will limit access to the polls in the name of election integrity. Election integrity is about not only limiting access to discourage illegal voting, but also considers appropriate access for eligible citizens. On balance, this costly bill does more to limit access by eligible voters than it does to improve the quality and security of Pennsylvania’s elections. Lacking any real benefit, given the costs, both financially and to the democratic process, HB 934 is bad policy and should not pass.
We urge this committee to vote against the passage of HB 934.
I thank you for your time, and am happy to answer any questions that you might have.
[1] See Pabey v. Pastrick, 816 N.E.2d 1138, 1144–46 (Ind. 2004), In re The Matter of the Protest of Election Returns and Absentee Ballots in the November 4, 1997 Election for the City of Miami, Florida, 707 So.2d 1170 (Fla.Ct.App. 1998).
[2] See e.g. Anastasia Hendrix, City Workers: We Were Told to Vote, Work for Newsom, S.F. Chronicle, Jan 15, 2004; Matthew Purdy, 5 Bronx School Officials are Indicted in Absentee Ballot Fraud, N.Y. Times, Apr. 25, 1996.
[3] See generally, Justin Levitt, The Truth About Voter Fraud, Brennan Center for Justice at New York University School of Law (2007).
[4] A very highly publicized example of this problem occurred when the Atlanta Journal Constitution attempted to find voter fraud by matching a list of voters against Social Security death records. The article cited the example of a dead voter named Alan Jay Mandel, and said that someone had “definitely” impersonated Mr. Mandel and signed his name in the pollbooks. The alleged example of impersonation fraud was widely cited by numerous public officials, but it didn’t pan out: it turned out that the signature actually belonged to one Alan J. Mandell — with 2 “l”s — not Mr. Mandel — with one “l”. Mr. Mandell — the one with 2 “l”s — was very much alive and well when he voted.
[5] Jingle Davis, Even Death Can’t Stop Some Voters, Atlanta J.-Const., Nov. 6, 2000.
[6] Over twenty years and approximately 20 million votes cast, even if all 5,412 ballots had in fact been fraudulent, the overall rate of fraud would have been 0.027%. Secretary of State Cathy Cox, The 2000 Election: A Wake-Up Call For Reform and Change 11 n.3 (2001), available at http://www.sos.state.ga.us/acrobat/elections/2000_election_report.pdf. In reality, many of these ballots are likely attributable to clerical error, data error, or statistical coincidence.
[7] Indeed, if the voter voted in several elections over the twenty-year span reflected in the voter history, each such mismatch would likely account for several “false positive” ballots. Thus, the 5,412 identified ballots might reflect far fewer matched – or mismatched – voters.
[8] See Building Confidence in U.S. Elections, Commission on Federal Election Reform Report, September 2005, at 18 – 19. http://www1.american.edu/ia/cfer/report/full_report.pdf
[9]A. G. Sulzberger, In Indiana, Top Official is Accused of Vote Fraud, New York Times, 3 March 2011, http://www.nytimes.com/2011/03/04/us/04indiana.html
[10] See, e.g., Matt A. Barreto et al., The Disproportionate Impact of Indiana Voter ID Requirements on the Electorate (2007) (“Barreto Indiana Study”), available at http://depts.washington.edu/uwiser/documents/Indiana_voter.pdf; Matt A. Barreto et al., Voter ID Requirements and the Disenfranchisement of Latino, Black and Asian Voters (2007), available at http://www.brennancenter.org/dynamic/subpages/download_file_50884.pdf; Dr. Robert Pastor et al., Voter IDs Are Not the Problem: A Survey of Three States (2008), available at http://www.american.edu/ia/cdem/pdfs/VoterIDFinalReport1–9–08.pdf. Another set of empirical research seeks to determine the impact of restrictive identification laws on voter turnout by analyzing past voting patterns. See generally Brief of R. Michael Alvarez et al. as Amici Curiae in Support of Petitioners, at 10–14, Crawford v. Marion County Election Board, 128 S. Ct. 1610 (2008) (“Political Scientists’ Brief”); see also Jeffrey Milyo, The Effects of Photographic Indentification [sic] on Voter Turnout in Indiana: A County-Level Analysis (Inst. of Pub. Pol’y, Univ. of Mo., Report 10–2007, 2007). These studies vary in their methodology; there is substantial dispute about the validity of each approach. In general, each of these turnout studies has necessarily been constrained by the historical record; because the most restrictive voter ID laws are new, the available pool of pertinent voting data is relatively limited.
[11] See Pastor, supra note 72, at 8 (concluding that approximately 1.2% of registered voters in the selected states had no government-issued photo identification); U.S. Election Assistance Comm’n, The Impact of the National Voter Registration Act of 1993 on the Administration of Elections for Federal Office 2005–2006, at 8 (2007), available at http://www.eac.gov/clearinghouse/docs/the-impact-of-the-national-voter-registration-act-on-federal-elections-2005–2006/attachment_download/file (reporting at least 172,810,006 registered voters as of the 2006 general election).
[12] See Brennan Center for Justice, Citizens Without Proof: A Survey of Americans’ Possession of Documentary Proof of Citizenship and Photo Identification 3 (2006), available at http://www.brennancenter.org/dynamic/subpages/download_file_39242.pdf (finding that approximately 11% of voting-age American citizens do not have current government-issued photo identification); id. (finding a disproportionate effect on low-income, minority, and elderly citizens); Barreto Indiana Study, supra note 72, at 19 (finding that approximately 16% of voting-age Hoosier citizens do not have current government-issued photo identification).
[13] See Voter ID issue page of PA State Representative Daryl Metcalfe, http://www.repmetcalfe.com/VoterID.aspx
[14] See Christopher Ponoroff and Wendy Weiser, Ed., Voter Registration in a Digital Age, Brennan Center for Justice, July 13, 2010, http://www.brennancenter.org/content/resource/voter_registration_in_a_digital_age/
[15] Commonwealth of Pennsylvania, Governor’s Executive Budget 2011–2012, March 8, 2011, p.A1.7.
[16] See Iowa HF 95 (2011) there will be a revenue loss of $173,000 in fiscal year 2012 and $345,000 each year thereafter to reflect the cost of providing identification cards at no charge for the current level of customers; Maine LD199, LR108(01)(2011)an annual general fund cost of $256,000 to manufacture additional identification cards. There would also be a reduction in highway fund revenue of $69,000 per year to eliminate the fees currently collected on identification cards; Maryland HB288 (2011) costs of voter outreach over the course of fiscal year 2012 and 2013 may total at least $500,000. Issuing free ID cards could decrease revenues by approximately $825,000 in fiscal year 2012. Annualized revenue decreases would total approximately $1.6 million. Expenditures may increase for local boards of elections as well. Minnesota H0089 (2011) fiscal year 2012 – $422,000; Fiscal year 2013 – $ 2,848,000; fiscal year 2014 – $37,000; fiscal year 2015 – $1,498,000. Missouri SB3 (2011) fiscal year 2013 – $6,679,780; Fiscal year 2014 – $3,179,402; New Hampshire SB129 (2011) this bill repeals the fee collected for issuance of non-driver picture identification cards. It is estimated this repeal may reduce fee collections by $240,830 per year. South Carolina H3003 (2011) $720,000 total. Recurring costs of approximately $260,000, including $100,000 for photo ID supplies and $160,000 for additional absentee ballots. Non-recurring costs are estimated at $460,000. This includes $85,000 for voter education and training as well as $375,000 for 50 camera stations at $7,500 each. The estimated impact on local government is none. Texas SB14 (2011) the total fiscal impact of the bill is estimated to be $2 million for fiscal year 2012 out of the general revenue fund. This estimate includes $500,000 to research and develop ways to inform the public of the new identification requirements. Additional costs are estimated to be $1.5 million for media advertisements. Wisconsin SB006 (2011) the net loss of annual revenue will be $2,736,832 for providing free IDs. Additionally there will be a one-time cost over a two-year period estimated at $2,082,259 to implement photo ID.
[17] Under the case law, states may not condition a voter’s receipt of free ID on the voter’s willingness to swear that he or she is indigent and cannot afford to pay for ID. The federal court that blocked the first iteration of Georgia’s ID law held that a fee waiver conditioned on a voter’s willingness to take an oath of indigency did not save the law from being an unconstitutional poll tax because many voters for whom a fee would pose a burden might be reluctant to take the oath out of embarrassment or because they do not believe they are indigent. Common Cause/Ga. v. Billups,, 406 F.Supp.2d 1326, 1369–70 (N.D.Ga. 2005) (the court went on to state that the fact that the waiver allowed some individuals to “avoid paying the cost for the Photo ID card does not meant that the Photo ID card is not a poll tax.”) When Georgia amended its photo ID law, it replaced the oath of indigency with a more innocuous oath that simply required the voter to state that he or she desired, but did not have, an acceptable identification card. See Common Cause/Ga. v. Billups (Common Cause III), 504 F.Supp.2d 1333, 1343 (N.D. Ga. 2007). The amended law, without fees or an oath of indigency, was upheld. Indiana’s photo ID law similarly provides free IDs to all Indiana citizens who do not have a valid Indiana driver’s license without requiring those citizens to take any oath. (See Ind. Code § 9–24–16–10) (the affidavit of indigency applies only to those who wish to vote without identification.)
[18] Vishal Agraharkar, Wendy Weiser and Adam Skaggs, The Cost of Voter ID Laws: What the Courts Say, Brennan Center for Justice (2011) p. 5.
[19] Common Cause III, 504 F.Supp.2d at 1378 (N.D.Ga. 2007), vacated on other grounds, 554 F.3d 1340 (11th Cir. 2009).