When Republicans talk about voter fraud, they are rarely talking about voter fraud. Instead, they are usually using rhetoric to push for making voting more difficult under the theory that lower turnout elections favor Republicans.
Lorraine C. Minnite wrote in her 2010 book:
* Federal monitoring of elections has been around since the Reconstruction period, but most often it has been directed toward defending the constitutionally protected voting rights of minority groups at the polls. What is significant about the Bush Justice Department initiative is the interpreting of voting rights as protection from corruption of the electoral process through voter fraud, despite a lack of evidence that voter fraud deserves the same level of scrutiny as racial discrimination in voting. This new understanding of voting rights is in keeping with an evolving pattern of conservative thinking and political strategy: conservatives are victimized by the liberal agenda, whites suffer discrimination more than blacks, and the rich unfairly get less from government than the poor.
* I show that for the vast majority of Americans committing an act of voter fraud—forging a voter registration card, stealing an identity to vote more than once, or knowingly voting illegally—is even more irrational than the individual act of voting. What would an individual voter on their own get out of committing an election crime? The incentives to cast an illegal ballot need to be pretty high to risk a felony conviction and five years in jail. This logic holds even for undocumented immigrants—the new blacks in America. Take the most likely scenario painted by those who fear a surge of illegal immigrant voters. Why would an undocumented immigrant who may have obtained a fake Social Security number in order to be paid for the low-wage labor he or she provides a U.S. employer come out from the shadows to cast a ballot that could deport that individual forever? The data revealed in the pages that follow are consistent with a logic that works against the fear that individual voters are corrupting elections. The best facts we can gather to assess the magnitude of the alleged problem of voter fraud show that, although millions of people cast ballots every year, almost no one knowingly and willfully casts an illegal vote in the United States today.
* Why is the specter of voter fraud recurrently conjured in U.S. electoral politics? My second major goal in this book is to explore why these allegations are made when the facts do not support them, and why they succeed in influencing electoral rules.
* The United States has a fragmented, inefficient, inequitable, complicated, and overly complex electoral process run on election day essentially by an army of volunteers. It is practically designed to produce irregularities in administration: the numbers of voters signing the poll book do not exactly match the numbers of ballots cast because of the unexpected crush of citizens who wanted to vote and the fact that a poll worker’s bathroom break was not covered; confused voters go here and there trying to cast
their ballots in their precinct, the one they voted in eight years ago, only to find their wanderings recorded as double votes; absentee ballots do not reach their rightful destination in time, causing anxious voters to show up at the polls where they are again recorded as voting twice; John Smith Sr. on line number twelve in the poll book signs for John Smith Jr. on line thirteen and violá—another voter is ensnared in a fraud; voter registration applications go unacknowledged so voters send in duplicates and triplicates, sometimes adding a middle initial or a new last name. The list of mix-ups, misunderstandings and mistakes goes on and on. Yet the multitude of alternative explanations for any one irregularity are ignored by the media, which gets a story of fraud faxed to them in a press release by a political party and wants to avoid the gigantic public yawn sure to follow a report of simple bureaucratic failure. The press is attracted to the potential scandal, corruption, or a brewing political fight, and reporters avert their eyes from the more reasonable but boring explanation. In so doing, they become part of a party-driven campaign strategy to keep down the vote.
* Contrast the incentives to the individual voter to commit fraud to those which appear to motivate baseless voter fraud allegations on the part of a political opponent. Who stands to gain the most? Committing voter fraud is a crime, falsely accusing someone of it is not.
A second example of influential voter fraud claims that collapse when scrutinized is the 2005 report of a now-defunct nonprofit organization called the American Center for Voting Rights (ACVR) created by Republican Party operatives that same year. On March 15, 2005, Robert Ney (R-Ohio), chairman of the U.S. House Administration Committee, held a field hearing in Ohio on election administration and balloting problems during the Ohio 2004 election. Mark F. “Thor” Hearne, II testified that voting problems in Ohio were the result of the National Association for the Advancement of Colored People (NAACP) paying people with crack cocaine to get them to register to vote.
…Within six months of bursting on the scene, the ACVR Legislative Fund released a self-commissioned report, titled “Voter Fraud, Intimidation and Suppression in the 2004 Presidential Election,” that professed to be “the most comprehensive and authoritative review of the facts surrounding allegations of vote fraud, intimidation and suppression made during the 2004 presidential election.” Analysis of its many claims, however, shows it to be little more than a pile of poorly scrutinized newspaper articles sensationalizing election election shenanigans allegedly instigated in all but two instances by Democrats, who were accused of far more voter intimidation and suppression than Republicans. In other words, it is a piece of political propaganda produced by Republican Party operatives who veiled their work as civil rights advocacy. The report identified five “hot spots” for voter fraud. Four of these were cities with substantial black populations (Philadelphia, Milwaukee, St. Louis, and Cleveland), plus Seattle, which rounded out a roster of key Republican swing states—Pennsylvania, Wisconsin, Missouri, Ohio and Washington—in the 2006 election. …among the more than one hundred cases cited of alleged voter fraud implicating nearly 300,000 potentially fraudulent votes in the 2004 election cycle, only about 185 votes could be confirmed as possibly tainted by fraud. Over the course of its brief two-year life, the ACVR achieved remarkable influence, promoting the idea that U.S. elections are riddled with voter fraud.
…spurious voter fraud allegations by media figures such as John Fund and “nonprofit” front groups for political parties such as the ACVR confuse the public debate about fraud. It is not uncommon for politicians and partisans to hurl accusations of “fraud!” at one another when elections are close. The accusations make great copy for journalists who sometimes purposefully, but also unwittingly, contribute to the confusion when they fail to address the allegations with any skepticism. They simply repeat and sometimes sensationalize the accusations, most of which turn out to be false (as documented here), instead of investigating and clarifying the issues for their readers.
…Election administration is intricate and arcane, and voter fraud has multiple meanings. Considered abstractly, the term is tied to competing notions of the proper exercise of the suffrage and the meaning of the right to vote. Fraud could be anything that corrodes the operation of elections.
* The best definition of voter fraud is the legal one, as a crime. It is not that “mere emotion of the mind” that sees fraud lurking behind an unusually high number of absentee ballots or a bus parked near a polling place with out-of-state license plates. As McCrary states, “there must be a fraudulent transaction.” But what kind of crime is fraud? Voter fraud, because it distorts the operation of “free and fair elections” violates a core constitutional commitment, and therefore, it is a political crime, an intolerable violation of Democratic norms.
Defining voter fraud as a crime, however, immediately runs into difficulties. The first problem is that, as a crime, voter fraud is not precisely defined in law, even though there is an abundance of law at the federal and state levels that criminalize behavior we call voter fraud.50 In fact, there is no single accepted legal definition of voter fraud because we have fifty state electoral systems and fifty state criminal codes governing the administration of elections, plus a federal code that applies in national elections—there is no uniform standard.51 This legal incoherence contributes to popular misunderstandings.
* Individual voters on their own are not capable of stealing elections, whereas election, party, and campaign officials are in a position to rig or manipulate electoral outcomes by virtue of their organizational capacity and their access to the machinery of the electoral process, two resources voters do not have.
* because voter fraud in the United States is a crime in both federal and state law, a legalistic definition is best because it gives us a means of measuring fraud. Whatever else voter or election fraud is—myth, legend, historical reality, or cross-national phenomenon of developing nations and mature democracies alike—it is also a crime in the United States, and the legal framework provides our best opportunity for grounding a definition of fraud in something we can observe.
* James Madison Porter (1793-1862): “one of the leading characteristics of distinction between the two great and leading political parties of this country, when we had parties formed on principle, was the fact that the federal party was for restraining the right of suffrage . . . while the democratic party was for giving the largest extent to the exercise of the right of suffrage.”
* Within the constitutional framework for regulating the electoral process, the states vary widely in how they administer elections. For example, they differ in who they disenfranchise among those lacking constitutional protections (i.e., noncitizens, misdemeants, felons, and ex-felons); in the number of days an individual must be registered prior to an election in order to be allowed to vote in that election; in the way in which voters cast ballots, diverging on matters related to absentee and mail-in balloting; in how long the polls are kept open; in the manner in which votes are validated; and in who counts the ballots, who challenges ballots, who contests elections, and who decides the outcome of such disputes.
* In the United States, private groups can and do get involved in campaigns to register citizens to vote, acting as intermediaries between voters and the state bureaucracies responsible for maintaining the lists. When such groups register people who are already registered to vote, when they fail to ensure that the forms they collect in their drives are filled out completely or accurately, or when they file forms in the wrong jurisdiction, they may add to the burden of local registrars to compile and verify accurate lists of eligible voters. The inefficiency is the price we pay for a personal registration system.
* The lack of an affirmative right to vote in the Constitution and the delegation of authority to the states to determine voter qualifications and oversee election administration are peculiar features unique to U.S. democracy among democracies of the world.
* [Voters] confront an array of different rules depending on where they live. The more rules and restrictions, the more stumbling blocks voters face when trying to cast legal ballots… The more complex the rules regulating voter registration and voting, the more likely voters and election clerks will make mistakes,50 and mistakes—or what I generically refer to as irregularities—are the manna of voter fraud allegations.
* Compared to voting in person, official scrutiny of the marking and casting of ballots is relaxed. To commit fraud when voting by mail, a voter must commit perjury and or forgery, and because the U.S. Postal Service is usually involved, absentee ballot fraud can result in the commission of a federal felony.
* The scholarly study of U.S. elections and voter turnout assumes the official tallies are an accurate picture of what Walter Dean Burnham calls “the American voting universe.”8 The vast field of U.S. electoral behavior is built on an almost religious faith that the count is free not only of fraud but also of (nonfraudulent) irregularities large enough to put the results in question.9 There is little academic research on the scale of fraud or the extent of irregularities in the count either today or in the past.
* the dearth of literature on election fraud and election administration means the question of fraud will remain open for sometime to come. What work has been done provides little guidance for how we should evaluate it today.
* When I began my inquiry into the question of election fraud in 2001, there had been no new empirical research published on the subject for almost two decades.
* The debate over fraud in the nineteenth century remains unresolved.33 Even the definitions of fraud remain disputed, and a systematic survey of the empirical evidence is daunting because much of whatever evidence there once was probably no longer exists. Some scholars took up the call for more empirical research on fraud,34 but none attempted a systematic survey of the primary evidence. Most of this work confirms Burnham’s claims that voter fraud in the nineteenth century was marginal and episodic, sometimes flagrant, but not endemic to U.S. elections, as Converse and others have asserted.35 The most comprehensive review of the literature on U.S. electoral corruption concluded that “there are reasons to doubt the reliability and accuracy of many generalizations which have been made about vote fraud in American politics,” namely the indiscriminate lumping of a variety of forms of corrupt practices together under the name of “vote fraud” and the characterization of hard-driving political tactics to mobilize the votes of “undesirables”—techniques that were then or are now unscrupulous or illegal—as “fraud.”36 The vast gap in this understanding of the character of electoral democracy in the past remains. This is regrettable because knowledge of the nineteenth century would be useful in shedding light on the contemporary hysteria over voter fraud.
* The Dornan-Sanchez electoral dispute fits squarely what Benjamin Ginsberg and Martin Shefter call “politics by other means”—the use of legal strategies and the courts, revelation, prosecution and investigation, and the media to win elections. According to Ginsberg and Shefter, “During the political struggles of the past decades, politicians sought to undermine the institution associated with their foes, disgrace one another on national television, force their competitors to resign from office, and, in a number of cases, send their opponents to prison. Remarkably, one tactic that has not been
so widely used is the mobilization of the electorate.”
* The evidence of voter fraud since Oregon adopted vote-by-mail, however, is practically non existent.
* It is not uncommon for a person’s signature to change over time, and many of the ballot signature-match problems appearing in the Oregon data indicate this to be the case.
* Early critics of vote-by-mail warned of the dangers of voter impersonation inherent in procedures that permit voters to fill out their ballots beyond the watchful eyes of election officials. Their fears appear to be unwarranted. Instead of ballot thievery and willful attempts to steal voters’ identities or impersonate eligible voters, the data actually reveal how balloting procedures and the voting process itself shape the kinds of violations that can mar the process. Vote-by-mail systems work best with voters who are literate and are able to follow written instructions—much more so than traditional polling place systems. Thus, vote-by-mail systems are bound to experience some problems with voters who are not literate or who do not pay enough attention to the rules on how to fill out and sign a ballot. Therefore, we should expect a larger number of ballot signature problems in voting systems that require voters to sign their ballots before mailing them in than in systems in which the mode of voting takes some other form. According to Oregon election officials, verifying the signatures of every ballot before that ballot is opened and counted helps prevent fraud better than most procedures used in polling place elections.
* Thus, unlike the calculus of illegal voting, which suggests that the benefits of committing voter fraud for the rational voter will be largely abstract or emotional (because the costs and the infinitesimal probability of affecting electoral outcomes wipe out any instrumental benefits to be gained by committing this crime), the benefits to a partisan interest group of alleging voter fraud where none exists are quite likely to be positive and instrumental.
* Marginalized Americans—racial minorities, immigrants, and lower-income groups—are strongly identified with the Democratic Party.
* Republicans once manipulated white distaste of blacks by tarring Democrats as being concerned mainly with “black” issues such as affirmative action, welfare, and liberal criminal justice policies. But the success of the Republican Party (with help from some Democrats) in reducing the salience of these issues by eliminating the programs and reversing the policies that supported the Great Society agenda has weakened the effectiveness of the electoral strategy that brought them to power in the first place. Racial peace inside the Democratic Party has created new challenges for the Republican Party as well.
In search of a new electoral strategy to keep them in power, Republicans operatives resorted to tapping into cultural myths about voter fraud. Invoking fraud, this new Southern strategy plays on both the historical memory of Southern Democratic Party corruption after the Civil War and also on big-city political machine vote stealing. If the blogosphere is any indication, the reddest base of the Republican Party has been energized by the tarring of Democrats as cheaters and the association of Democrats with a racialized crime-prone underclass.
* We live by myths. They challenge the explanatory power of facts and are a convenient, even comforting replacement for a lack of knowledge about how the real world works. Stories about who we are, where we come from, and why we do what we do structure everyday life in hidden ways. Claude Lévi-Strauss writes that we create myths to make sense of the random and chaotic data of life and nature.8 He argues all myths have an elementary structure of binary opposition and are extensions of the nature of human intelligence that forces the data of life into dualisms resolved only by the emergence of new contradictions. “We are split creatures literally by nature,” writes Wendy Doniger, summarizing Lévi-Strauss’s view, “and we organize data like a simple digital machine. Our common sense is binary; the simplest and most efficient way to process experience seems to be by dividing it in half, and then to divide the halves in half, reformulating every question so that there are only two possible answers to it, yes or no.”9 Myths find unity in opposing dualities. If Lévi-Strauss is correct, they are powerful because they give meaning to human beings in ways that mirror the workings of the human mind.
Americans, like all people always, make myths about themselves, and one of the more powerful of these is the myth of American democracy. Following Lévi-Strauss, we can break that myth down into its opposing elements, its competing celebratory and cautionary narratives. One glorifies U.S. origins, individual freedoms, and “our most fundamental right, the right to vote.”10 U.S. exceptionalism extols the Constitution as a work of genius that ushered on to the historical stage a new age of freedom and equality. Indeed, in its telling and ritual retelling, the celebratory story takes on the luster of divine right. This is a purity myth like those that prop up the idea of a city on a hill or a chosen people or white supremacy.
Its binary opposite is a myth of pollution, of the corrosion and corruption that comes from without and threatens the chosen people’s democracy. Our democracy is pure and therefore sacred precisely because it self-consciously excludes the impure, those lacking in qualities deemed necessary to the enjoyment of the privilege of citizenship, of being an American.
* Even though it is no longer acceptable to voice the view that certain people among one’s fellow citizens do not deserve to vote, many ordinary Americans do in fact share this idea and can take comfort from the fact that some elites do, too. For example, disdain for the inept lower classes was evident in a well-publicized comment by Justice Sandra Day O’Connor, blurted out during oral argument in the Bush v. Gore case that determined the winner of the 2000 presidential election. The justices asked respondent’s lawyers what the standard should be for identifying the intent of Florida voters who failed to completely punch out their ballot chads. O’Connor quickly became exasperated. As one of the lawyers laboring below her gaze began an explanation of the painstaking process involved in accurately counting ballots, O’Connor cut him off and griped, “Well, why isn’t the standard the one that voters are instructed to follow, for goodness sakes? I mean, it couldn’t be clearer.”12 In other words, “it couldn’t be clearer” that inept voters with their dimpled and hanging chads do not deserve to have their votes counted, even where state law provides for it.13 The incredulity that a ballot not properly marked for reading by a machine could possibly be a legal vote is echoed in Chief Justice William Rehnquist’s concurring opinion, which called unreasonable the Florida Supreme Court finding that state law required machines to be capable of correctly counting votes.14
And here we have another example: the comments of Sue Burmeister, the Georgia legislator who sponsored the controversial Georgia photo identification legislation in 2005 (HB 244) remind us again of the sentiment that to protect the integrity of the ballot some people should not be encouraged to cast one. In this example, however, it is not just ineptitude that disqualifies, it is the reputed criminal tendencies of blacks. According to a leaked U.S. Justice Department Voting Section staff memorandum objecting to the bill’s new restrictive identification requirement,15 Representative Burmeister told Justice Department officials that the attacks of September 11 caused her to reflect on how easily the terrorists had obtained IDs once inside the United States. She said that she was aware of vote buying in Georgia and had read John Fund’s book, Stealing Elections, which argues elections are easily and routinely stolen in the United States through vote-buying schemes (see chap. 1). According to the memo, Burmeister said “that if there are fewer black voters because of this bill, it will only be because there is less opportunity for fraud. She said that when black voters in her black precincts are not paid to vote, they do not go to the polls.”
* the spurious vote fraud allegation is a virtually cost-free tactic that carries the potential for a very large payoff to the party group making the charge. This explains in part the large gap we see between the proliferation of spurious voter fraud allegations in recent elections and the reality of a small amount of individual criminal fraud, as observed in the tiny fraction of investigations, prosecutions, and convictions obtained against fraud.
* The case of St. Louis, Missouri, a majority black city with budget problems, shows how the mishandling of voter registration and elections procedures can be misrepresented as fraud. There is little doubt that in the past St. Louis experienced some election fraud and public corruption. St. Louis politics were long organized by political machines, and fraud has a storied past in that city that for some, condemns the politics of the present.32 In 2000, the historical memory of fraudulent elections, bribery, conspiracies, ballot tampering, and voting from the grave colored the rush to judgment when administrative mismanagement and shockingly poor record-keeping by the city’s election bureaucracy combined to produce troubling election irregularities.33 Before the irregularities could be sorted out, they were seized on by partisans, including Christopher “Kit” Bond, Missouri senior Republican senator, who claimed the problems were evidence of a Democratic Party–driven “major criminal enterprise designed to defraud voters” instead of what a federal probe later determined them to be—procedural incompetence and official failure to abide by the law.
* “In politics as in everything else it makes a great difference whose game we play. The rules of the game determine the requirements for success.”24 The power of the voter fraud myth is its power to justify electoral rules that competitive parties and politicians create to “keep down the vote” and gain advantage over their opponents.
* Today, stringent voter identification laws have been championed almost exclusively by Republicans and, with two exceptions (in Alabama in 2003, and in Washington in 2005), have been enacted only when Republicans achieved unified control over state government…
* In response to opponents’ claim that no one in Indiana or elsewhere was known to have been prosecuted for impersonating registered voters, [Richard] Poser dismissed the value of prosecution data as a measure of voter fraud. “The absence of prosecutions,” he writes, “is explained by the endemic under-enforcement of minor criminal laws (minor as they appear to the public and prosecutors, at all events) and by the extreme difficulty of apprehending a voter impersonator.”
But, again, Posner’s assertions about matters of fact bearing on his reasoning are poorly supported. He cites no evidence that minor criminal laws are endemically underenforced. Quite to the contrary, the stepped-up enforcement of minor criminal laws across the United States against offenses such as fare beating, littering, public drinking, and disturbing the peace is so significant that it is credited by some with lowering crime rates over the past fifteen years.81 A prolific scholar of the law, Posner, who has written a sharp critique of the “law and literature” movement in U.S. jurisprudence,82 violates his own warnings against the discovery of legal justification in fiction and imagines a madcap scenario to explain why voter identification laws are justified. He tells a tale of voter impersonators lurking around the polling place, scanning the voter registration rolls, and matching names to the obituaries to figure out if any of the dead are still on the rolls. The myth of voter fraud takes over from there…
To summarize Judge Posner’s opinion, voting is, on the one hand, of little benefit to the individual and most people who do not vote know this. In fact, it is so inconsequential an activity that committing a fraud against it is akin to littering, another another minor crime that goes unprosecuted.83 On the other hand, it is a monumental crime because committing it deprives others of their civil rights through “vote dilution,” as recognized by the Supreme Court (something even the poll tax did not do because that controversy involved balancing the right to vote with a state interest in things such as “limiting the franchise to people who really care about voting or in excluding poor people or in discouraging people who are black”). Poll workers are usually too busy to scrutinize a signature but apparently not too busy to scrutinize a picture, match it to the face before them, and check for a valid address and expiration date on the ID. One source of fodder for vote fraud is the massively out-of-date voter registration rolls. But the fact that the rolls are so poorly maintained is not relevant to the proclaimed grave concern over the undetectable, unprosecuted, trivial but monumental crime of voter fraud. Obtaining a photo ID is not really so difficult if you really want to vote, although why would you? If you do not have an ID, you can get one by presenting a motor vehicles official with a birth certificate (or copy) and another official document with your name and address on it, such as a utility bill. As everyone who drives knows, this is much easier to do than sending in ID with your absentee ballot, such as a copy of the same birth certificate and document with your name and address on it that everyone else needs to produce in order to get a government-issued ID! And if people would just stay home on election day, no one would be harmed by the new ID law—except, maybe the Democratic Party, which, apparently, few want to join anyway, at least in Indiana, a conclusion we can draw from Posner’s admonition that Democrats need to work much harder there to get out their vote.84 The plaintiffs appealed the case. But they were no more able to dislodge the myth of voter fraud from the minds of Supreme Court justices than they were with Judge Posner.