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What’s Behind the Voter Fraud Witch Hunt?

At some point during the Florida 2000 recount debacle partisans realized anew that razor-thin margins can be turned by manipulation of voting rules.

March 30, 2016

Cross-posted on Bill­Moy­

In 2016 Amer­ican demo­cracy is under signi­fic­ant pres­sure, facing trends it has not seen in decades. The cracks first began to show in the antic days of the Flor­ida recount in Bush v. Gore. The recount fiasco surely was an extraordin­ary occur­rence, the only time since 1876 that a pres­id­en­tial elec­tion had drawn so close (and the only time since 1888 that the winner of the popu­lar vote would lose the Elect­oral College). But it also revealed some­thing much more mundane. Flor­id­a’s elec­tion system had rotted as if touched by the state’s humid­ity: at every level it was rife with error and prone to abuse. There was much work to be done in the decade after Flor­ida. But that’s not what happened.

Instead conser­vat­ive activ­ists focused on one thing that hadn’t occurred: voter fraud, specific­ally voter imper­son­a­tion at the polls. The remed­ies sought for this phantom threat have a very tangible consequence: they make it harder to vote, in ways that espe­cially affect Demo­crats.

Of course Amer­ican history offers ample evid­ence of elec­tion fraud — that is, miscon­duct organ­ized by party offi­cials or other polit­ical oper­at­ives designed to sway results. In the 19th Century they might have stuffed a ballot box; in the 20th Century there might have been an attempt to manip­u­late absentee ballots (for example, by filling them out for patients at a nurs­ing home). Purportedly inde­pend­ent polit­ical commit­tees with names that obscure fund­ing sources also pose the risk of illeg­al­ity. But voter fraud — espe­cially imper­son­a­tion at the polling place — remains exceed­ingly rare. After all, the candid­ate who bene­fits gains little from one more vote, but the costs to the voter, if caught, are high.

In Wiscon­sin, where a single improper vote can bring a $10,000 fine and three years in prison, a federal judge tartly noted that “a person would have to be insane to commit voter imper­son­a­tion fraud.” As for the fear that noncit­izens and undoc­u­mented immig­rants are voting in droves, that too poses a logical prob­lem; few indi­vidu­als would trek from home, find their way across the border, evade capture, then march into a govern­ment office and declare their name and address.

Justin Levitt of Loyola Univer­sity writes, “Voter fraud, in partic­u­lar, has the feel of a bank heist caper: roundly condemned but tech­nic­ally fascin­at­ing, and suffi­ciently lurid to grab and hold head­lines.” It is also like a bank robbery in another way: such heists, once common, are no longer a signi­fic­ant prob­lem. Tech­no­logy has improved the secur­ity of vaults, and bank robbers now routinely get caught. Facing the cost-bene­fit analysis, would-be Bonnie and Clydes no longer try their luck. (In contrast elec­tronic theft from finan­cial insti­tu­tions is sky high.)

The focus on fraud has deep roots in found­ing-era worries that the poor would sell their votes and in Gilded Age fears expressed by Prot­est­ants about immig­rant voters. Today it is embed­ded within the modern conser­vat­ive move­ment.

Elements on the right long had arched eyebrows at the unruly passions of the masses. During the 1950s Russell Kirk invoked the long-forgot­ten figure of John Randolph of Roan­oke (“I am an aris­to­crat. I hate equal­ity. I love liberty”) as a patron for conser­vat­ive move­ments. Kirk gave the nascent New Right intel­lec­tual heft. His volume on Randolph makes jarring read­ing, as Kirk praises him for his devo­tion to free­hold suffrage and oppos­i­tion to “one man, one vote.” The white south­ern­ers who moved en masse to the Repub­lican Party after civil rights legis­la­tion brought a harsh edge to the call for states’ rights. Those concerns melded with the idea that, some­how, the wrong people were being allowed to vote, that a bloated, prof­lig­ate welfare state was being kept aloft by millions of new voters.

Conser­vat­ive skep­ti­cism about voting hardened in response to Jimmy Carter’s first major policy proposal as pres­id­ent in 1977. Noting that voter parti­cip­a­tion in the United States ranked twenty-first among demo­cra­cies, Carter proposed a nation­wide system that would allow people to register on Elec­tion Day. He also urged public finan­cing for congres­sional campaigns and an end to the Elect­oral College. At first, key Repub­lican lead­ers warmed to the voting plan (the party chair called it “a Repub­lican concept”). Within weeks, however, pressed by state party offi­cials and conser­vat­ive activ­ists, the G.O.P. set itself against the bill. The Repub­lican National Commit­tee magazine warned about “Fraud and Carter’s Voter Regis­tra­tion Scheme.” That Novem­ber, Ohio voters over­whelm­ingly repealed that state’s same-day regis­tra­tion law. Carter’s plan never came for a vote before Congress.

A key moment in the conser­vat­ive polit­ical align­ment that domin­ated Amer­ican polit­ics for three decades came in Dallas in August 1980, just after the Repub­lican conven­tion at which Ronald Reagan became the party’s pres­id­en­tial nominee. Evan­gel­ical voters had once been a bedrock Demo­cratic Party constitu­ency, but after the social upheavals of the 1960s and 1970s polit­ical activ­ists organ­ized church­go­ers as a potent conser­vat­ive force. The Reli­gious Roundtable’s National Affairs Brief­ing gathered 15,000 people, mostly minis­ters, to hear Reagan speak. He consec­rated a nontra­di­tional polit­ical marriage between the Repub­lican Party and the ascend­ant reli­gious right, telling the crowd, “I know you can’t endorse me, because this is a nonpar­tisan meet­ing — but I endorse you.” The week’s most contro­ver­sial remark was made by the leader of the South­ern Baptist Conven­tion, who declared, “It is inter­est­ing at great polit­ical rallies how you have to have a Prot­est­ant to pray, a Cath­olic to pray, and then you have a Jew to pray. With all due respect to those dear people, my friends, God Almighty does not hear the prayer of a Jew.” Badgered by report­ers, Reagan found it neces­sary to disavow his back­er’s state­ment.

Far less atten­tion was paid to what New Right organ­izer Paul Weyrich had said to warm up the crowd. “How many of our Chris­ti­ans have what I call the ‘goo goo’ syndrome — good govern­ment,” he mocked. “They want every­body to vote. I don’t want every­body to vote. Elec­tions are not won by a major­ity of people. They never have been from the begin­ning of our coun­try, and they are not now. As a matter of fact, our lever­age in the elec­tions quite candidly goes up as the voting popu­lace goes down.” Weyrich was a prolific founder of organ­iz­a­tions and built an infra­struc­ture of groups that lasted decades. One was the Amer­ican Legis­lat­ive Exchange Coun­cil (ALEC), a busi­ness-backed outfit that draf­ted propos­als to be intro­duced by conser­vat­ive state legis­lat­ors. The organ­iz­a­tion prin­cip­ally focused on dereg­u­la­tion and corpor­ate concerns but later drew notice for embra­cing a model “stand your ground” law pushed by the National Rifle Asso­ci­ation. (Someone who felt threatened no longer had to try to retreat but could use a fire­arm in self-defense. It became notori­ous after a volun­teer “neigh­bor­hood watch­man” killed an unarmed black teen­ager, Trayvon Martin, though in the end he did not cite the law.) In 2009 ALEC draf­ted model voter iden­ti­fic­a­tion bills, which were intro­duced in state­houses across the coun­try. Weyrich also cofoun­ded the Herit­age Found­a­tion, an activ­ist conser­vat­ive think tank that would become a potent popular­izer of the specter of voter imper­son­a­tion.

After the 2000 elec­tion Missouri became the epicen­ter of lurid rumors. John Ashcroft lost his US Senate race even though his oppon­ent, Mel Carna­han, had died three weeks earlier in a plane crash. (The popu­lar but deceased Demo­cratic candid­ate’s name remained on the ballot. After he posthum­ously won, his widow was appoin­ted to the seat.) Dead candid­ates, dead voters, swirled in the imagin­a­tion. Senator Kit Bond decried a St. Louis court order that allowed polling places to stay open two hours later to accom­mod­ate voters, char­ging that the elec­tion had been stolen by “a major crim­inal enter­prise designed to defraud voters.” That year St. Louis elec­tion offi­cials alleged that thou­sands of people had voted despite list­ing vacant lots as their home.

The Post-Dispatch invest­ig­ated and found that all but a few of the lots did have homes on them. In all, in 2000 and 2002 there were only four substan­ti­ated cases of double voting in the state, an over­all fraud rate of 0.0003 percent.

In fact every thor­ough study of voter imper­son­a­tion has found it to be exceed­ingly rare. Lorraine Minnite of Rutgers notes that in 2005, at the peak of a federal crack­down, “federal prosec­utors indicted far more people for viol­a­tions of the nation’s migrat­ory-bird laws than for elec­tion fraud.” A compre­hens­ive national study by the Walter Cronkite School of Journ­al­ism at Arizona State Univer­sity scru­tin­ized thou­sands of alleg­a­tions; it found ten examples of in-person voter imper­son­a­tion over a dozen years. A draft study for the federal Elec­tion Assist­ance Commis­sion conduc­ted by Demo­cratic and Repub­lican experts concluded, “There is wide­spread but not unan­im­ous agree­ment that there is little polling place fraud, or at least much less than claimed, includ­ing voter imper­son­a­tion, ‘dead’ voters, noncit­izen voting and felon voters.” Justin Levitt calcu­lated that stat­ist­ic­ally “it is more likely that an indi­vidual will be struck by light­ning than that he will imper­son­ate another voter at the polls.”

Ashcroft recovered nicely from his unex­pec­ted defeat. George W. Bush nomin­ated him to be Attor­ney General in 2001. He form­ally made combat­ing voter fraud a prior­ity for the Justice Depart­ment, demand­ing that “all compon­ents of the Depart­ment place a high prior­ity on the invest­ig­a­tion and prosec­u­tion of elec­tion fraud.” Dozens of probes produced little, though an effort was made to spin the results; a press release in 2005 summing up the depart­ment’s work nation­wide, for example, breath­lessly announced that three indi­vidu­als had been convicted of fraud­u­lent voting in both Missouri and Kansas. Nation­wide from 2002 to 2005 only 24 people were convicted of illegal voting in federal elec­tions and no one was charged with voter imper­son­a­tion; by 2007 only 120 people had been charged and 86 convicted. “Many of those charged by the Justice Depart­ment appear to have mistakenly filled out regis­tra­tion forms or misun­der­stood eligib­il­ity rules,” a journ­al­istic analysis concluded.

Then why the clamor? An ener­getic band of partisan activ­ists produced much of the noise, many of them clustered around Ashcroft:

Mark “Thor” Hearne was a top coun­sel for the Bush reelec­tion campaign in 2004, after which he and a party offi­cial created the Amer­ican Center for Voting Rights; its “headquar­ters” appeared to be a post office box in a Texas strip mall. Four days after it mater­i­al­ized on the Inter­net, the group test­i­fied before Congress as sage nonpar­tisan experts. Two years later Hearne’s group vanished as abruptly as it had appeared. Hearne even declined to mention it in his law firm biography.

Hans von Spakovsky had served as a local party offi­cial in Geor­gia. Moving to the Justice Depart­ment’s Civil Rights Divi­sion, he over­ruled the career lawyers who wanted to object to Geor­gi­a’s new voter iden­ti­fic­a­tion law. It turned out he had already writ­ten a law review article, using the grandly Madiso­nian pseud­onym Publius, strongly back­ing the ID idea. Pres­id­ent George W. Bush installed him on the Federal Elec­tion Commis­sion without a Senate vote as a recess appointee. Senator Barack Obama blocked his confirm­a­tion. Even­tu­ally von Spakovsky moved to the Herit­age Found­a­tion, where he wrote dozens of articles and cowrote a book, Who’s Count­ing? How Fraud­sters and Bureau­crats Put Your Vote at Risk. In a typical essay on, he warned, “One does­n’t have to look far to find instances of fraud­u­lent ballots cast in actual elec­tions by ‘voters’ who were the figments of active imagin­a­tions.” The most recent example the 2008 article cited came from the mid-1990s. Most were at least two decades old.

A former Wall Street Journal edit­or­ial writer, John Fund, now at National Review, also rang alarms. Fund’s books include the heated Steal­ing Elec­tions: How Voter Fraud Threatens Our Demo­cracy. He focuses on Demo­crats, he explains in that book, not for partisan reas­ons but because “Repub­lican base voters are middle-class and not easily induced to commit fraud.” Fund claims that eight of the 19 hijack­ers on Septem­ber 11, 2001, were registered to vote, but he offers no corrob­or­at­ing evid­ence, and a later study found the claim highly unlikely. Fund’s book does include some genu­ine examples of elec­tion miscon­duct. Gener­ally these involve absentee ballots — the most suscept­ible to manip­u­la­tion by candid­ates or their back­ers. Rarely do they involve in-person imper­son­a­tion.

Round­ing out the squad was a talen­ted lawyer named Kris Kobach, who worked with von Spakovsky in Ashcroft’s orbit. Busy Kobach helped draft the 2010 Arizona law that required police to check the immig­ra­tion status of drivers and passen­gers during traffic stops if the officer thinks there is a “reas­on­able suspi­cion” that they are here illeg­ally. Even­tu­ally Kobach was elec­ted to be the secret­ary of state of Kansas.

Panic over improper voting became a recur­ring riff on the right. Fox News, the conser­vat­ive-lean­ing cable network, set up a “Voter Fraud Watch.” Former House major­ity leader Dick Armey, head of the organ­iz­a­tion Freedom­Works, declared prepos­ter­ously that 3 percent of all ballots were fraud­u­lent votes cast by Demo­crats. Using coded language he told Fox News that the prob­lem “is pinpointed to the major urban areas, to the inner cities.” Dick Morris, the Bill Clin­ton advisor turned conser­vat­ive pundit, and his wife, Eileen McGann, made a telling slip. Describ­ing poor voters headed early to the polls in Ohio, they warned, “Photo IDs are neces­sary to combat this rampant voter fraud,” presum­ably defined as poor people voting. Such imagery tapped unspoken racial fears. A Univer­sity of Delaware study surveyed white voters on whether iden­ti­fic­a­tion should be required to vote. When a photo of a black man voting accom­pan­ied the ques­tion, support for voter ID jumped 6 percent over responses to the ques­tion illus­trated by a photo of a white voter.

Hints emerge that at least some activ­ists knew better, even as they pursued voting law changes. Royal Masset, polit­ical director of the Repub­lican Party of Texas, was unnerv­ingly frank in an inter­view with the Hous­ton Chron­icle: “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.”

Adap­ted from Michael Wald­man’s new bookThe Fight to Vote.

(Photo: AP)