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Has The Fraud Bogeyman Claimed Another Victim?

  • Justin Levitt
Published: March 15, 2007

Thursday, March 15, 2007

Has the fraud bogeyman claimed another victim?
By Justin Levitt

Seven United States Attorneys have been ousted, and the push is on to figure out exactly how far the paper trail leads, and whether political payback was at its core.  It appears that the Senate has become particularly eager to unearth the reasons behind the dismissal of Carol Lam, who successfully prosecuted former San Diego Congressman Duke Cunningham.  The plotline in California is certainly compelling.  But it should not overshadow the brouhaha farther up the coast.

The Washington gubernatorial election of 2004 ended with a photo-finish: just 129 votes out of almost 3 million cast.  Cue the advocates, who quickly cried foul, and the lawyers, who subjected the election to the closest scrutiny the Northwest had ever seen.  But when all was said and done, the federal court reviewing the case carefully distinguished the actual evidence from the frenzied rhetoric.  Said the judge: No testimony has been placed before the Court to suggest fraud or intentional misconduct.

John McKay was the former United States Attorney for western Washington State, and one of the seven federal prosecutors recently relieved of his position.  In 2004, he too reviewed the widespread allegations of criminal misconduct, and found nothing worth prosecuting.

And now there is speculation that failing to fall in line in the witch hunt for individual voter fraud may have cost him his job.

There has been a relentless political press of late to sell an epidemic of a particular form of fraud: individuals heading to the polls to intentionally cast an illegal vote.  The campaign is useful for proponents of policies like proof of citizenship or other restrictive ID requirements, which disproportionately affect senior citizens, minorities, and poor Americans without the necessary documents.  In the context of new Medicaid rules requiring similar documentation, the early returns are already in: [t]he largest adverse effect of this policy has been on people who are American citizens.

Its difficult to import these restrictions to the election context if you cant convince the public that fraudulent voters are running amok.

Prosecutors, however, cannot rely on scare tactics to make a case.  They must investigate and find evidence of wrongdoing.  And prosecutors are now discovering that when you dig a little deeper, allegations of intentional individual fraud at the polls often evaporate.

Dead voters: check.  A ballyhooed New York list of the ostensibly deceased electorate, for example, actually showed bad information and clerical errors, not fraud. Where further research was conducted, not one alleged case of voting from beyond the grave panned out.

Noncitizen voting: check.  In Seattle, unsupported allegations of noncitizen voting prompted one local resident to challenge the voting credentials of thousands of residents on the basis of foreign-sounding names.  Question how many citizens you know who would have made that cut.

Double voting: check, check.  A columnist in Washington State recently summarized the usual state of affairs: 2,107,370 voters later, only 1 under suspicion.  Turns out - and statistics confirms - that two ballots with the same name and birthday arent always cast by the same person.

It makes sense that most of these allegations dont pan out.  For any individual voter, casting that one incremental extra vote isnt worth it.  And so individual voter fraud is proven to happen less often than getting struck by lightning.

Thats not to say that lightning never strikes.  And prosecution certainly has its place in the mix: when criminally fraudulent acts happen, they should be prosecuted.  But overzealous and politically pressured proceedings are not an acceptable alternative.  In 2004, an eligible 22-year-old Milwaukee voter named Cynthia Alicea was questioned, booked, and put through a trial based on hasty allegations of double-voting.  Though she was acquitted, she told the press that based on the ordeal, she was inclined not to vote ever again.  It doesnt sound like running our citizens through the ringer in the name of a hypothetical epidemic is a great strategy for cultivating democracy.

Congress should ask more questions about whether McKay was fired because he declined to chase imaginary bogeymen.  Political pressure to prosecute widespread voter fraud where it doesnt exist would be a loss not only for the law enforcement community, but also for the voters they serve.