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.