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Voting Fraud Inquiry? The Investigators Got Burned Last Time

The President of the United States is peddling conspiracy theories that undermine our democracy for political gain.

January 27, 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.