The Pen and the Cross: Catholicism and English Literature 1850 – 2000

Posted on November 13, 2020 by Luke Ford

Richard Griffiths writes in this 2010 book:

* The concerns of English Catholic literature on the whole failed to mirror those of its French equivalent. The reason for this lies mainly in the position, and history, of the Catholic Church within the two countries and the very different opponents it had to face in each. In France the last three decades of the nineteenth century saw a strong revival in religious values, with many Catholic conversions among the intelligentsia and a flowering of literary and artistic output of a Catholic nature. To a large extent, this was a reaction against the tyranny of institutionalized atheism and anticlericalism, in the urban society of the nascent Third Republic. The vast claims of nineteenth- century positivism dominated this society, which had become imbued with the belief that Catholicism was purely for the uncultivated and ignorant and that it was impossible to be both intelligent and Christian. At the same time, politically, anticlerical laws had become the hallmark of the Third Republic. However, in the space of a few years a new Catholic intelligentsia, made up mainly of recent converts, had made religion once more respectable.

* The British converts’ situation was very different. They were mostly converts not from atheism or agnosticism, but from another form of Christianity, Anglicanism. And where in France, despite all historical vicissitudes,
Catholicism had remained the religion of the vast majority of Christians, in Britain Catholicism was very much a minority religion, which had been kept by force of law in an inferior position for centuries until the early nineteenth. The major concern therefore, for British Catholic writers, was not with what differentiated Christianity from the secular society of the time, but with what differentiated Catholicism from other forms of the Christian religion. The miraculous and the mystical had a lesser part to play. In their place came a concentration on specifically Catholic views of the sacraments and of the priestly role. The authority of the Church, also, was continually contrasted with what appeared the ‘free- for- all’ of the Anglican position.
Secular politics played a lesser role for most of these writers (with certain conspicuous exceptions), than for their French equivalents, until the interwar period. At the same time there was a concern with class and social position that would seem strange to French eyes.

* Nowadays, most people are aware of the grievous persecution that was suffered by British Catholics in the sixteenth and seventeenth centuries – the tortures and executions of priests for celebrating the Mass, and of those who harboured them, and the very large fines and punishments enacted on those (the ‘recusants’) who refused to attend the compulsory Anglican services. It is perhaps less well known that after the times of physical persecution, the Catholic population continued to suffer under a series of laws, known collectively as the ‘penal laws’, which inflicted various civil disabilities upon them… These laws, which effectively removed Catholics from public life and severely restricted their religious life, received some palliation in the late eighteenth century… It was only after some years of campaigning for Catholic emancipation that the 1829 Catholic Relief Act removed most disabilities.

* The Oxford Movement was a group of Anglicans, based mainly in Oxford, which set out to restore the Church of England to what they saw as its mainline position in the universal Church. They reacted against the extreme
Protestantism, and the latitudinarianism, of much nineteenth- century Anglicanism and aimed to restore the High Church character of the seventeenthcentury Church. In the process, they stressed those characteristics that the
Church of England and Catholicism had in common. They believed ‘that the Church of England held an intermediate position, represented by the patristic tradition, as against modern Romanism on the one hand and modern Protestantism on the other’.6 Leading lights in the movement included John Henry Newman, Edward Bouverie Pusey, John Keble and Hurrell Froude.

* The situation of the Catholic Church in Britain in the early nineteenth century was later to be graphically described by Cardinal Vaughan:

“Marks of persecution were fresh upon her body, the smell of fire was still upon her clothing. Her organisation was abnormal and missionary, reduced to its lowest form, as though England had been China or Japan. After ten centuries of public praise her voice was low; her divine services cut down to their bare essentials; many of her distinctive devotions and practices were either forgotten or conducted in private, and, as it were, in silence, and with closed doors. No kind of uniform, no outward mark of distinction in her ministers was visible. The English Church was like a ship on an angry sea, close reefed and battened down, exposing as little surface as possible to the stiff gale which was still only lessening.”

* Catholics also took delight in pointing to the aristocratic nature of the Catholic religion, as opposed to ‘middle- class’ Anglicanism.

* The French Catholic novel has been described as having had three major strands. The ‘pious’, or ‘sentimental’ novel, a sub- literature of no great value; the ‘conversion novel’, of which Huysmans’ En route (1895) was the prototype, followed by other works such as Ernest Psichari’s Le Voyage du Centurion (1915); and the most widespread form, the ‘miraculous’, or ‘mystical novel’, in which the framework of the realist novel served as a
backdrop for mystical and often miraculous events. A far less prominent strand was that exemplified by some of the novels of Paul Bourget, in their examination of human dilemmas relating to faith (it was this strand, minor
in France, that was to become the dominant one in Britain).

* Converts from Anglicanism in the late nineteenth and early twentieth century were above all attracted by the certainty and authority of the Catholic Church’s teachings and its decisions. This seemed a safe anchor amidst all
the uncertainties they had felt until this time. They tended to contrast this with what they regarded as the free- for- all of Anglicanism.

* ‘English Catholics are just Protestants, protesting against Protestantism.’ D. H. Lawrence’s statement has a certain amount of truth in it. It was above all Anglicanism that obsessed the English Catholic writers, however.

* [Hilaire Belloc’s] cynical view was that British imperialism was a crooked scheme directed by Jewish fi nanciers. In his four savage political novels, which were written between 1904 and 1910 starting with Emmanuel Burden, a central figure was the Jewish financier I. Z. Barnett, whose tentacles reached into every area of the national life and who finally ended up as the Duke of Battersea. Robert Speaight rightly compares Belloc’s depiction of him to ‘some savage anti- Semitic caricature of Forain’s illustrating some diatribe of Drumont’s.’17 This fictional character stands for the Oppenheims, the Beits, the Wernhers, those speculators and investors in
the mines of the Transvaal for the preservation of whose commercial interests the South African War, in Belloc’s view, had been fought.

* G. K. Chesterton shared many of Belloc’s attitudes in relation to the Jews. Much of his verse on their subject
contains the same spirit of false jocularity that characterized Belloc’s most vulgar efforts… Chesterton’s hatred of capitalists led him, like Belloc, to a mistrust of Jews whom he felt were at the centre of the system.

* By the late 1920s there had been considerable enthusiasm for Italian Fascism throughout Europe and nowhere more so than in Catholic circles. Ignoring the fact that Fascism on the Italian model had been in its origins a secular movement, hostile to the Church, foreign observers tended to take the Lateran Pacts of 1929 (which had essentially been an attempt at a pragmatic solution to Italian Church- State relations) as a sign that this dictatorship was based on Christian principles.

Fascism appealed particularly to the Right- leaning facet of Catholic political thought that we have been examining. Belloc, in particular, regarded Mussolini from the early 1920s onwards ‘with a besotted admiration which was undiminished until his death’.23 (Chesterton, however, detached as always, viewed Fascism with a much more cautious eye). But there is no denying the attraction felt generally in establishment circles throughout
Britain for the new dictator,24 and Catholics were at this stage merely one group among many.

* Fascism, for him, meant a return to the Catholic Middle Ages and was an attack on ‘the ideas to which the Renaissance gave birth and which have dominated the world for several centuries’.27 It stood for ‘a sense of moral purpose’ rather than any specific political tendency, whether of Left or Right. Italy, said Barnes, had been in a terrible state, but Mussolini’s moral power had filled the Italian people with moral strength. Britain, which was in a similar state, required a similar solution.

By the early 1930s, a number of politically aware Catholic writers and journalists in Britain were similarly writing of the need to imitate this model of government (the economic crisis having led many to believe that democracy was doomed).

* Throughout the 1930s there was to be a strong element of support for ‘Mediterranean fascism’ among British Catholics, who indiscriminately placed Mussolini, Salazar and Franco in the same category…Nazism, however, presented a completely different problem for most of these people. Admirers of Mussolini such as Jerrold, Petrie and Belloc recoiled at the ‘barbarism’ of Nazi methods and beliefs.

* George Orwell assessed public opinion in 1944: ‘Outside its own ranks, the Catholic Church is almost universally regarded as pro- Fascist, both objectively and subjectively’.

* The ‘Radical Right’ and its influence on Belloc and Chesterton was the strongest strain in British Catholic political thought in the early twentieth century…

* Evelyn Waugh (1903–66) presents something of a contrast with Graham Greene. Greene stands as a turning- point in twentieth- century Catholic literature, looking back to what had preceded him, but also looking forwards, as
his career progressed, in new directions which, though some have seen them as an abandonment of the Catholic novel, were in fact a restructuring of it in new and vital ways. Waugh, on the other hand, represents the culmination of a tradition, its finest flowering – but his work is essentially a dead-end.

* Brideshead Revisited was first published in 1945. In the preface to the revised edition of 1960, Waugh described its theme as being ‘the operation of divine grace on a group of diverse but closely connected characters.’9 Unlike so many other Catholic novels, however, this one does not assail the reader ‘up front’ with an obvious message and the theme only gradually emerges during the course of the novel. Indeed, so subtly is it introduced that many people, enjoying the novel for other reasons, have failed to realize how Christian a work it is. When Waugh went to Hollywood in 1947 to discuss a film version of the novel, he noted that the writer who would be adapting it for the screen ‘[saw] it purely as a love story’ and that none of those involved saw ‘the theological implication’.1

* Sebastian, the drunken wastrel, is tortured not so much by the actions of his mother (which are merely ancillary), as by a sense of loss (expressed through a sense of loss of childhood, but in fact something far deeper) – and by what Cordelia perspicaciously perceives as a vocation that he was resisting.21 After
many vicissitudes, he eventually tries to get taken on as a lay- brother at a monastery in North Africa, but is not accepted because of his alcoholism. Finally (just as Charles de Foucauld had in Jerusalem after his conversion), he ends up as a humble doorkeeper in the house of the Lord, ‘a sort of under- porter’.22 As Cordelia puts it, the Superior ‘was a very holy old man and recognized it in others’. Gently, Cordelia explains to Ryder that what he has to understand about Sebastian is that he is holy and that his suffering has been necessary: ‘One can have no idea what the suffering may be, to be maimed as he is – no dignity, no power of will. No one is ever holy without suffering. It’s taken that form with him . . .’

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Trump’s Party Cannot Survive in a Multiracial Democracy

Posted on November 11, 2020 by Luke Ford

Francis Wilkinson writes July 15, 2020:

As Ronald Brownstein points out in a data-driven essay on Trump’s “neo-Nixonian” 2020 campaign: “Americans today are far more racially diverse, less Christian, better educated, more urbanized, and less likely to be married. In polls, they are more tolerant of interracial and same-sex relationships, more likely to acknowledge the existence of racial discrimination, and less concerned about crime.”

What Brownstein describes is an American enlightenment that viscerally rejects Republican resentment and chauvinism. The GOP embrace of Trump has further narrowed the party’s already restricted access to the growing segments of the American electorate. It is deeply unpopular among voters under 40 who will determine the future of the U.S.

In propping up Trump’s corrupt and derelict administration, the GOP has grown increasingly authoritarian. Having repeatedly failed to take an exit ramp from white nationalism, the party finds an exit from democracy itself beckons as the only sure means to stave off further electoral decline. The next four months may be a very dangerous patch of road.

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What Is Trump Playing At?

Posted on November 11, 2020 by Luke Ford

Thomas B. Edsall writes:

* Sean Wilentz, a professor of history at Princeton, was outspoken:

It would be not simply a major departure but a deeply dangerous one were Trump to deny the legitimacy of Biden’s election. It would be a brutal renunciation of American democracy. It would create not simply a fissure but a chasm in the nation’s politics and government, telling his tens of millions of supporters as well as his congressional backers to reject Biden’s presidency. It would be an act of disloyalty unsurpassed in American history except by the southern secession in 1860-61, the ultimate example of Americans refusing to respect the outcome of a presidential election.

In fact, Wilentz warned:

Trump would be trying to establish a center of power distinct from and antagonistic to the legitimately elected national government — not formally a separate government like the Confederacy but a virtual one, operating not just out in the country but inside the government, above all in Congress.

Wilentz envisaged

a counter-government, administered by tweets, propped up by Fox News or whatever alternative outlet Trump might construct for himself — a kind of Trumpian government in exile, run from Mar a Lago or maybe from wherever else Trump selects to reside in, in order to avoid prosecution by the State of New York.

Wilentz and others argue that Trump is gearing up to violate a principle of peaceful transition established shortly after the founding of the nation.

* Trump’s refusal to concede, and the support he is getting from his fellow Republicans, is part and parcel of the sustained drive by the right, especially since Barack Obama won a majority in 2008, to constrain and limit political participation by minorities by every available means: gerrymandering, voter suppression, restricting the time and place of balloting, setting new rules for voter identification and so forth.

On this theory, allowing the Nov. 3 vote to stand would, in the face of rising minority participation, endanger the ability of the Republican Party to compete in future national elections.

* Samuel Moyn, a Yale historian, discounted fears of a Trump-led insurgency for a different reason: that Trump is not up to playing the role of strongman.

“I think we will come to understand him as the weakest recent president,” Moyn wrote by email, “and this ‘unprecedented’ situation in which he refuses to acknowledge election results is just more proof.”

Moyn rejected the notion that “we are in a dangerous situation,” because instead of a serious threat, “we have something more like a parody of a coup, one which moreover is something like a conclusive demonstration of the limits of Donald Trump’s power all along.”

* The fact that Trump does not care about the scope of the mayhem he creates — that he revels in anarchic conflagration — creates exceptional danger.

Philip Bobbitt, a professor of law at the University of Texas and at Columbia, is an expert in national security. He raised the question of what is called “continuity of government.”

If Trump succeeds in preventing acceptance of Biden as president all the way to Jan. 20, 2021, Bobbitt notes in an email, what is known as “continuity of government” becomes a problem.

Continuity of Government is an artifact of the nuclear age: what happens to the National Command Authority vested in the president — and to nuclear deterrence — if a surprise attack decapitates the US leadership? The problem resurfaced after 9/11 when it became known that the fourth plane seized by Al Qaeda was headed to the Capitol and would have struck during morning business in the House. The result could have rendered Congress helpless until new elections replaced enough House members to reconstitute a quorum; in the interim martial law would have prevailed.

These problems could be lethal in the chaos Trump is seeding.

A number of scenarios, Bobbitt noted,

by no means fanciful, could result in the constitutional drop-dead date of Jan. 20, leaving the country and many elements of government deeply divided as to who the rightful occupant of the presidency is.

In that event, Bobbitt asked, “What happens to the national command authority vested in the president?”

“There is a second, related problem,” Bobbitt continued:

The continuity of government vulnerability spawned a number of emergency powers granted to the president, some highly classified. We could well face the use of these powers by the president based on his professed belief that the election was irredeemably flawed and that a “coup” against him is underway.

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Voter Fraud: A Red Herring

Posted on November 11, 2020 by Luke Ford

From Harvard’s Kennedy School, released November 6, 2020:

Proponents of stricter voting laws often claim restrictions are necessary to prevent voter fraud, but there is little evidence to support this assertion. President Trump has repeatedly claimed, without evidence, that widespread voter fraud was committed by his opponents in the 2016 election, asserting that “there were three to five million illegal votes cast in the 2016 election.”102 On November 27, 2016, the President tweeted: “In addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally.”103 On January 25, 2017, Trump tweeted: “I will be asking for a major investigation into VOTER FRAUD, including those registered to vote in two states, those who are illegal and….even, those registered to vote who are dead (and many for a long time). Depending on results, we will strengthen up voting procedures!”104 The White House produced no evidence to support these claims, which seem to have been intended to encourage regulation to suppress voting, not combat fraud.

Claims of widespread voter fraud have been made without evidence by other Republican officials. Kris Kobach, former Secretary of State of Kansas, has been outspoken campaigner against voter fraud – for example, claiming without evidence that “fraudulent votes tipped the election in Minnesota for (former Senator Al) Franken.”105 In 2005, the U.S. Senate Republican Policy Committee stated in a report that “voter fraud continues to plague our nation’s federal elections, diluting and canceling out the lawful votes of the vast majority of Americans.”106 The report contained no credible evidence to back up the claim.

Since 2018, there have continued to be multiple accusations of election fraud again presented without evidence. In the 2018 elections, there were allegations of fraud in Florida and Arizona made by Republican politicians. In Florida’s Senate race, Republican Rick Scott filed a lawsuit alleging “rampant fraud” in the counties that heavily favor Democrats because the counties took longer to tally the votes.107 The lawsuit led to a Broward County Circuit judge ordering the Broward County Supervisor of Elections to release records requested by Scott and the National Republican Senatorial Campaign Committee related to voting tabulations. The records released did not include any evidence to support the accusations of fraud, and the Florida Department of State, which oversees elections, did not receive or observe any credible evidence of fraud or criminal activity.108

In Arizona’s 2018 Senate race, the Arizona Republican Party accused the Maricopa County Recorder of “premeditated destruction of evidence” after “voting irregularities” in the election. However, no evidence of voter fraud was produced and Republican Martha McSally conceded the race to Democrat Krysten Synema. In Kentucky, Governor Matt Bevin claimed that there were a “number of significant irregularities” and “thousands of absentee ballots that were illegally counted” in the November 2019 gubernatorial election.109 No evidence was produced to back up this claim and Bevin eventually conceded the race after losing a recount.110

Bipartisan studies have concluded that there has been little evidence of widespread voter fraud in modern American elections. The Heritage Foundation, a conservative think tank, has compiled a nationwide database of charges of voter fraud over 37 years (from 1982 to 2019). During this period, 1,085 charges resulted in criminal convictions, an average of just 29 convictions nationally per year.111 A 2017 national voting study by the Brennan Center for Justice, an academic policy center and think tank, concluded very few noncitizens voted in the 2016 election. Across 42 jurisdictions studied, election officials who oversaw the tabulation of 23.5 million votes referred only an estimated 30 incidents of suspected noncitizen voting for further investigation or prosecution. In other words, improper noncitizen votes accounted for 0.0001% of the 2016 votes in those jurisdictions.112 Forty of the jurisdictions — all but two of the 42 studied — reported no known incidents of noncitizen voting in 2016. In the ten counties with the largest populations of noncitizens in 2016, only one reported any instances of noncitizen voting, consisting of fewer than 10 votes.

In California, Virginia and New Hampshire — the states where President Trump claimed the problem of noncitizen voting was especially acute — no official identified an incident of noncitizen voting in 2016.

In 2002, the Justice Department established the Ballot Access and Voting Integrity Initiative to prosecute voter fraud. From 2002 to 2006, just 86 people across the country were convicted of ballot fraud offenses.113 Voter fraud convictions were an infinitesimal part of the overall vote of more than 110 million votes cast nationwide.

In February 2017, President Trump established the Presidential Advisory Commission on Election Integrity to investigate voter fraud in the 2016 election. The Commission found no significant evidence of voter fraud and was disbanded in January 2018 after it became the target of eight lawsuits accusing it of violating federal laws ranging from transparency to discrimination.114 Documents released from the lawsuits, including e-mails and PowerPoint presentations from the two meetings held by the panel, contained no evidence of widespread voter fraud.115, 116 A 2017 study published in the Electoral Studies Journal examined President Trump’s accusations of voter fraud by looking closely at three states where Trump claimed such fraud took place: New Hampshire, Virginia, and California. The study found “little evidence consistent with widespread and systematic fraud, . . . no evidence of problems in the vein raised by Donald Trump, . . . [and] no suspicious patterns in result timing” that would imply a “rigged” election.117 The study’s results were “consistent with various state-level investigations conducted in the initial months of 2017, all of which have failed to find any evidence of widespread voter fraud in the 2016 General Election.”118

In an earlier preliminary study by The New York Times, 26 states and the District of Columbia reported no credible allegations of voter fraud in the 2016 election, and eight states reported only one credible allegation. The highest numbers of credible allegations were very low: Tennessee (40 allegations out of 4.3 million votes cast in the primary and general elections) and Georgia (25 allegations out of 4.1 million votes cast in the primary and general elections). There was no evidence of widespread fraud.119 A 2014 study published in the Electoral Law Journal looked for evidence of voter impersonation, the type of fraud targeted by strict voter ID laws and later cited as a basis for President Trump’s short-lived Advisory Commission. The study found few reports of impersonation and concluded that “the proportion of the population reporting voter impersonation is indistinguishable from that reporting abduction by extraterrestrials.”120 (Nor has there been significant evidence of fraud in voting by mail; see section on “Response to the Novel Coronavirus,” below.) In fact, the only significant case of voter fraud in recent years has been the case of a Republican political operative accused of ballot tampering, perjury, and obstruction of justice in connection with the 2018 congressional race in North Carolina. The case is currently pending in state district court.121

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Inappropriate Applications of Benford’s Law Regularities to Some Data from the 2020 Presidential Election in the United States

Posted on November 11, 2020 by Luke Ford

According to Wikipedia: “Walter Richard Mebane, Jr. (born November 30, 1958) is a University of Michigan professor of political science and statistics and an expert on detecting electoral fraud. He has authored numerous articles on potentially fraudulent election results, including a series of notes on the results of the Iranian presidential election, 2009.[1] He authored a paper[2] disputing the Organization of American States’s claim of fraud in the 2019 Bolivian general election as well.[3] He also drafted a paper regarding the possibility of frauds on both of 2 major parties in the 2020 South Korean general election from a statistical point of view.”

Walter Mebane is the best known political scientist who has used Benford’s Law to try to detect voter fraud.

Professor Mebane writes November 10, 2020:

As vote counting is drawing to a close in the 2020 presidential election in the United States, some1 are claiming that application of Benford’s Law to the precinct vote counts from a few counties and cities give evidence of election fraud…

It is widely understood that the first digits of precinct vote counts are not useful for trying to diagnose election frauds. See for example the discussion in Carter Center (2005) and Pericchi and Torres (2011). The first digit is largely determined by the number of voters in each precinct, as usually—and especially in small jurisdictions such as individual cities and counties—the share of the votes received by parties or candidates does not vary all that greatly across precincts. Consider for example the densities in Figure 1 for votes from Chicago. The Biden/Harris ticket on average received a proportion of about .82 of the votes, and the Figure shows that the shape of the Biden/Harris vote count distribution pretty closely mirrors the shape of the distribution of votes cast. Trump/Pence received on average about .17 of the votes, but the Trump/Pence vote count distribution has a couple of hitches: for low counts the distribution reflects that in many precincts Trump/Pence vote counts are single digits.

Clearly the first digits of the Biden/Harris counts will most frequently be 3, 4 or 5. That non-Benford’s Law pattern simply relects the distribution of precinct sizes (presuming turnout did not vary that much across the city),2 given the strong support for Biden/Harris across the whole city. The first-digit distribution has nothing whatsoever to do with any kind of election fraud…

To date I’ve not heard of any substantial irregularities having occurred anywhere, and the particular datasets examined in this paper give essentially no evidence that election frauds occurred.

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Rich Hasen: Trump Needs Three Consecutive Hail Mary Passes

Posted on November 11, 2020 by Luke Ford

Professor Richard Hasen writes in The Atlantic:

Despite the clear math showing that Joe Biden has won the election, President Donald Trump has refused to concede. He has directed his legal team to keep on fighting to try to overturn the results of the election, including in a new 105-page federal-court filing in Pennsylvania. These legal maneuvers are unlikely to pay off in the form of a second term for Trump; he would need the equivalent of three consecutive Hail Mary passes to stay in office.

But what Trump and his legal team are doing can nevertheless cause real harm to the country going forward, should millions of people believe Trump’s false statements that Biden won the election through fraud. It is this near certainty, and not the long-shot possibility of Trump staying in office, that is reason for grave concern.

The state of play can be described as follows: Biden appears very likely to win 306 Electoral College votes, 36 more than he needs for the presidency. This is a comfortable lead. Recounts in even the closest states, where the candidates are 10,000 to 20,000 votes apart, are extremely unlikely to change the election results; the most recent Wisconsin recount, in 2016, shifted the result by 571 votes. And nothing in those closest states indicates the kind of systemic failure that could lead to a more dramatic reversal.

The lawsuits filed in Pennsylvania and elsewhere are highly unlikely to go anywhere. The most recent complaint filed in federal court in Pennsylvania amounts to virtually nothing. Its core idea, that the different procedures for voting by mail and voting in person constitute an equal-protection violation, is ludicrous.

First, the differences between mail-in and absentee voting were obvious for months and nothing prevented the Trump campaign from suing earlier over this; a late suit now is barred by a legal doctrine called laches, which says that you cannot simply wait until after an election you don’t win to sue over an election problem you could see beforehand.

Further, having different procedures for mail-in and in-person balloting does not create an equal-protection violation. If this claim succeeds, it would mean that voting was unconstitutional across the entire country. The claim is especially weak when voters had the choice to vote using either system. The other claims in the complaint are mostly retreads of issues that have been rejected legally, factually, or both in other lawsuits. There has been no proof of widespread fraud.

Even if some of the claims were to have merit, a strong argument exists that federal courts should not get involved. The Electoral Count Act, passed after the disputed 1876 presidential election, conceives of a state role, not a federal role, for resolving fights over the election, and federal courts will likely want to let states decide. A federal ruling could endanger the ability of a state to submit its Electoral College votes by the December 8 safe-harbor deadline; Congress cannot challenge Electoral College slates submitted by that date.

More important, this quixotic lawsuit presents no path to an ultimate Trump victory. The Trump campaign has not provided a good reason for a federal court to step in and delay certification. Nor has it provided any evidence showing that there were tens of thousands of ballots cast illegally for Biden or of legal ballots not counted for Trump. That kind of showing should be necessary to get any relief, and likely from a state rather than a federal court. Biden is currently ahead by about 45,000 votes in Pennsylvania, and may well be ahead by 100,000 when all the votes are counted.

And even if Trump somehow overturned the results in Pennsylvania, that would not be enough to flip the results in the Electoral College. In Arizona, where Biden now leads by about 15,000 votes, the Trump campaign has filed a lawsuit that could call at most 200 votes into question. And even overturning Pennsylvania and Arizona is not enough to make up for Biden being 36 votes beyond the Electoral College threshhold.

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Who Is Hans von Spakovsky?

Posted on November 11, 2020 by Luke Ford

According to Wikipedia:

According to the New Yorker, von Spakovsky has promoted “the myth that Democratic voter fraud is common, and that it helps Democrats win elections”.[5]

Von Spakovsky has supported his claims about the extent of voter fraud by citing a 2000 investigation by the Atlanta Journal-Constitution, which purported to find 5400 instances of deceased people in Georgia voting in the last two decades.[5] The Journal-Constitution later revised its findings, noting that it had no evidence of a single deceased person voting and that the vast majority of the instances were due to clerical errors.[5]

In an interview with the New Yorker, von Spakovsky cited two scholars who he said could substantiate that voter-impersonation fraud was a significant threat: Robert Pastor of American University and Larry Sabato of the University of Virginia.[5] Von Spakovsky said that Pastor had personally experienced voter impersonation, but Pastor refuted von Spakovsky’s claim, saying, “I think they just mistakenly checked my name when my son voted—it was just a mistake. I don’t think that voter-impersonation fraud is a serious problem.”[5] Both Pastor and Sabato said that they would only support voter ID laws if voter IDs were made free and easily available to all, which is not what Republicans have tried.[5] Sabato, the author of “Dirty Little Secrets,” also described voter impersonation as “relatively rare today.”[5] In a 2011 article published by the Heritage Foundation, von Spakovsky again referred to Sabato as an authority to establish the existence of common voter fraud, along with “Stealing Elections,” a book by John Fund, whose claims of voter fraud have been extensively debunked,[32][33] and whom he neglects to identify as the co-author of a book they jointly wrote. He describes the efforts of Kansas Secretary of State Kris Kobach, his colleague both at the Presidential Advisory Commission on Election Integrity and Heritage, to expose the alleged existence of extensive voter fraud, as “carefully described research,” although Kobach’s claims have also been shown to be vastly overstated.[34]

In a court decision, Fish v. Kobach, US District Court Judge Julie A. Robinson ruled that von Spakovsky’s claims of widespread voter fraud were not in fact found to be backed up with provable researched cases. Judge Robinson wrote that she gave his testimony little weight because it was “premised on several misleading and unsupported examples of non-citizen voter registration, mostly outside the State of Kansas.” She also noted that during the proceedings, Mr. von Spakovsky “could not identify any expert on the subject of non-citizen voter registration.” When he tried to use a list of 30 people provided by a Kansas election official as proof of voter fraud in one county, Judge Robinson wrote in her decision: “He later admitted during cross-examination that he had no personal knowledge as to whether or not any of these individuals had in fact falsely asserted U.S. citizenship when they became registered to vote and he did not examine the facts of these individual cases.”[35] Judge Robinson found witnesses for the defense were often found to be not credible, finding: “Defendant’s expert Hans von Spakovsky is a senior legal fellow at The Heritage Foundation, ‘a think tank whose mission [is to] formulate and promote conservative public policies’.” Von Spakovsky “…cited a U.S. GAO study for the proposition that the GAO ‘found that up to 3 percent of the 30,000 individuals called for jury duty from voter registration roles over a two-year period in just one U.S. district court were not U.S. citizens’.” However, on cross-examination, he admitted that the GAO study contained information on a total of eight district courts; half reported that not one non-citizen had been called for jury duty. The three remaining district courts reported that less than 1% of those called for jury duty from voter rolls were noncitizens. Therefore, his report misleadingly described the single district court with the highest percentage of people reporting that they were noncitizens, while omitting mention of the seven other courts described in the GAO report, including four that had zero incidents of noncitizens on voting rolls.[36] Robinson said, “While von Spakovsky’s lack of academic background is not fatal to his credibility …., his clear agenda and misleading statements … render his opinions unpersuasive.”

According to Professor Richard L. Hasen, an election-law expert at the University of California at Irvine, “there are a number of people who have been active in promoting false and exaggerated claims of voter fraud and using that as a pretext to argue for stricter voting and registration rules. And von Spakovsky’s at the top of the list.”[4] Hasen said that Spakovsky’s appointment to Donald Trump’s Commission on Election Integrity was a “a big middle finger” from Trump to people “serious about fixing problems with our elections.”

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Henry Olsen: How we can be confident that Trump’s voter fraud claims are baloney

Posted on November 11, 2020 by Luke Ford

Henry Olsen writes in the Washington Post:

Mass voter fraud should be relatively easy to detect, even if it might be difficult to prove. Since we elect presidents through the electoral college, political operatives trying to nefariously produce a victory would focus on states critical to an electoral college majority. Thus, if fraud were behind President-elect Joe Biden’s win, we should expect to see significantly higher turnout increases in key states when compared to the nation as a whole. Furthermore, we should expect to see higher turnout increases within those states in Democratic areas than in Republican areas, since those regions are places where Democrats are more likely to be able to hide any stolen votes. Finally, we should expect to see significantly larger shifts in voter margins toward the Democrats from other, previous elections as the fraud alters the area’s normal voting patterns.

None of these early warning signs of fraud appear in the results. As the Cook Political Report’s Dave Wasserman’s Popular Vote Tracker shows, voter turnout was up significantly almost everywhere compared with 2016. (The few states where that is not true are largely places that have not yet counted all of their mail ballots, such as California, New York, New Jersey, Maryland and Alaska). The huge turnout increases observed in battleground states such as Arizona, Georgia, Florida and Texas is partially explained by their rapid population growth compared with the rest of the country. Turnout also rose by 15 percent or more over 2016 levels in 10 non-battleground states where there was no chance the race was ever going to be close. Voter enthusiasm rather than fraud is the most obvious explanation for the large increases in votes cast in swing states.

The results within swing states also do not support allegations of fraud. Take Wisconsin, for example. The 2020 map looks almost identical to the 2016 outcome, with Biden flipping only two counties (Sauk and Door) that Trump had narrowly carried. Trump’s margins in rural and small metro area counties only narrowly changed from 2016, sometimes up a couple of points and sometimes down. Biden’s margins in the state’s Democratic strongholds were also not unusually high, nor was turnout noticeably higher there than in Trump regions. Trump’s vote share increased in Milwaukee, for example, and turnout in that deep blue county increased by less than 4 percent, compared with a 10-percent statewide increase. None of this is what one would expect to see if voter fraud drove the results.

The same factors exist in Michigan and Pennsylvania. Biden flipped only three Michigan counties, each of which Trump had carried by only three points or less in 2016. And he flipped only two Pennsylvania counties — Erie and Northampton — both of which are known as bellwethers that usually back the winner. Philadelphia is alleged to be the site of massive voter fraud, but as of this writing, it has reported fewer votes cast than in 2016 and is giving Biden a smaller vote lead than Hillary Clinton received. That’s a pretty incompetent performance if the fix is in.

All three states’ results indicate what was to blame for Trump’s defeat: suburban vote slippage. Trump’s margin in the three suburban counties surrounding Milwaukee dropped from 104,500 votes in 2016 to 96,750 in 2020, even as voter turnout increased from 369,000 to 417,700 votes. He would have won Wisconsin had he won these counties and similar suburbs of Madison and Minneapolis by the same percentage margins he did in 2016. The same is true in suburban Detroit, which Trump lost by 69,000 votes in 2020 after losing it by only 5,500 votes in 2016, and suburban Philadelphia, which he lost by 188,200 votes in 2016 and 283,800 votes this year. Trump would be ahead in Pennsylvania by roughly 50,000 votes if he had lost suburban Philly by his same margins in 2016.

This was not an isolated swing-state event, either. Trump’s suburban margins dropped in deep red non-swing states, such as Louisiana, Kentucky and Missouri, too. The president also did significantly worse in suburbs in deep-blue states such as Oregon and Washington. Trump’s plaintive cry toward the end of his campaign for suburban women to “please like me” is more indicative of why he lost than anything he says now about fraud.

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The Voter Fraud Myth

Posted on November 11, 2020 by Luke Ford

Jane Mayer writes in the Oct. 22, 2012 New Yorker:

[Hans] Von Spakovsky, who frequently appears on Fox News, is the co-author, with the columnist John Fund, of the recent book “Who’s Counting?,” which argues that America is facing an electoral-security crisis. “Election fraud, whether it’s phony voter registrations, illegal absentee ballots, vote-buying, shady recounts, or old-fashioned ballot-box stuffing, can be found in every part of the United States,” they write. The book connects these modern threats with sordid episodes from the American past: crooked inner-city machines, corrupt black bosses in the Deep South. Von Spakovsky and Fund conclude that electoral fraud is a “spreading” danger, and declare that True the Vote serves “an obvious need.”

Mainstream election experts say that Spakovsky has had an improbably large impact. Richard L. Hasen, a law professor at the University of California at Irvine, and the author of a recent book, “The Voting Wars,” says, “Before 2000, there were some rumblings about Democratic voter fraud, but it really wasn’t part of the main discourse. But thanks to von Spakovsky and the flame-fanning of a few others, the myth that Democratic voter fraud is common, and that it helps Democrats win elections, has become part of the Republican orthodoxy.” In December, Reince Priebus, the chairman of the Republican National Committee, wrote, “Election fraud is a real and persistent threat to our electoral system.” He accused Democrats of “standing up for potential fraud—presumably because ending it would disenfranchise at least two of its core constituencies: the deceased and double-voters.” Hasen believes that Democrats, for their part, have made exaggerated claims about the number of voters who may be disenfranchised by Republican election-security measures. But he regards the conservative alarmists as more successful. “Their job is really done,” Hasen says. “It’s common now to assert that there is a need for voter I.D.s, even without any evidence.”…

Earlier this year, he noted, the Pew Center on the States found that more than 1.8 million people who had died were still registered to vote in America, and that 2.75 million people were registered to vote in multiple states. How many of these errors translate into fraudulent votes? “It is impossible to answer,” he said. “We don’t have the tools in place.” But he cited a 2000 investigation, by the Atlanta Journal-Constitution, of voting records in Georgia over the previous two decades; the paper reported that it had turned up fifty-four hundred instances of dead people being recorded as having voted. “That seems pretty substantial to me,” he said.

He did not mention that the article’s findings were later revised. The Journal-Constitution ran a follow-up article after the Georgia Secretary of State’s office indicated that the vast majority of the cases appeared to reflect clerical errors. Upon closer inspection, the paper admitted, its only specific example of a deceased voter casting a ballot didn’t hold up. The ballot of a living voter had been attributed to a dead man whose name was nearly identical…

Nearly all scholars of America’s system of locally run elections acknowledge chronic problems, including administrative incompetence, sloppy registration rolls, unreliable machinery, vote buying, and absentee-ballot fraud. But Robert Brandon, the president of the Fair Elections Legal Network and a longtime reformer, says that the current debate, “which is about people impersonating another voter, is silly.” He adds, “You can’t steal an election one person at a time. You can by stuffing ballot boxes—but voter I.D.s won’t stop that.”

Von Spakovsky offered me the names of two experts who, he said, would confirm that voter-impersonation fraud posed a significant peril: Robert Pastor, the director of the Center for Democracy and Election Management, at American University, and Larry Sabato, a political-science professor at the University of Virginia. Pastor, von Spakovsky noted, had spoken to the U.S. Commission on Civil Rights about being a victim of election fraud: voting in Georgia, he discovered that someone else had already voted under his name.

When I reached Pastor, he clarified what had happened to him. “I think they just mistakenly checked my name when my son voted—it was just a mistake.” He added, “I don’t think that voter-impersonation fraud is a serious problem.” Pastor believes that, compared with other democracies, America is “somewhere near the bottom in election administration,” and thinks that voter I.D.s make sense—but only if they are free and easily available to all, which, he points out, is not what Republican legislatures have proposed. Sabato, who supports the use of voter I.D.s under the same basic conditions, says of the voter-impersonation question, “One fraudulent vote is one too many, but my sense is that it’s relatively rare today.”

Hasen says that, while researching “The Voting Wars,” he “tried to find a single case” since 1980 when “an election outcome could plausibly have turned on voter-impersonation fraud.” He couldn’t find one. News21, an investigative-journalism group, has reported that voter impersonation at the polls is a “virtually non-existent” problem. After conducting an exhaustive analysis of election-crime prosecutions since 2000, it identified only seven convictions for impersonation fraud. None of those cases involved conspiracy.

Lorraine Minnite, a public-policy professor at Rutgers, collated decades of electoral data for her 2010 book, “The Myth of Voter Fraud,” and came up with some striking statistics. In 2005, for example, the federal government charged many more Americans with violating migratory-bird statutes than with perpetrating election fraud, which has long been a felony. She told me, “It makes no sense for individual voters to impersonate someone. It’s like committing a felony at the police station, with virtually no chance of affecting the election outcome.” A report by the Times in 2007 also found election fraud to be rare. During the Bush Administration, the Justice Department initiated a five-year crackdown on voter fraud, but only eighty-six people were convicted of any kind of election crime.

Hasen, who calls von Spakovsky a leading member of “the Fraudulent Fraud Squad,” told me that he respects many other conservative advocates in his area of expertise, but dismisses scholars who allege widespread voter-impersonation fraud. “I see them as foot soldiers in the Republican army,” he says. “It’s just a way to excite the base. They are hucksters. They’re providing fake scholarly support. They’re not playing fairly with the facts. And I think they know it.”

…In the spring of 2008, as Obama was clinching the Democratic nomination for President, von Spakovsky issued a lengthy report on electoral fraud, titled “Stolen Identities, Stolen Votes.” In an op-ed piece on the Fox News Web site, he argued that “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.” Yet the most recent evidence he cited in his report was decades old: a grand-jury report documenting criminal collusion, from 1968 to 1982, among Brooklyn election officials and local machine politicians.

Richard Hasen asked to see the grand-jury report, but von Spakovsky did not respond. (“What am I—his research assistant?” he asked me.) Hasen has another explanation for von Spakovsky’s refusal to produce the document: “He must have known it was weak.” Hasen eventually hunted down his own copy. On his blog, he observed, “Most of this fraud took place forty years ago,” adding, “When election officials collude with those committing fraud, a voter-I.D. requirement would not help in the slightest.”

…Von Spakovsky said, “The idea that there’s some deep conspiracy is just laughable.” His own work, however, has suggested that liberals engage in conspiracies. “Who’s Counting?” opens with an insinuating account of how Al Franken, the Minnesota Democrat, was elected to the Senate in 2008. According to the book, there is “compelling” evidence, compiled by a citizens’ watchdog group, that “1,099 ineligible felons voted illegally” in the contest—“more than three times” Franken’s victory margin. The subhead of the chapter is “Would Obamacare have passed without voter fraud?”

Fox News and other conservative media outlets have promoted this argument. However, Mike Freeman, the Hennepin County Attorney, who oversees Minneapolis, told me, “Those numbers are fraudulent. We investigated, and at the end of the day, out of over four hundred allegations in the county, we charged thirty-eight people. Their research was bad, sloppy, incredible. They are just liars.” Some of the targeted voters weren’t actually felons; others were on probation and hadn’t realized that they remained ineligible to vote. To be convicted of voter fraud, a suspect needs to have criminal intent…

Von Spakovsky has also presented a more recent case as a scandal. Last year, in an op-ed piece that was nationally syndicated, he wrote, “A 2010 election in Missouri that ended in a one-vote margin of victory included 50 votes cast illegally by citizens of Somalia.” He told me that these voters “could only speak Somali, even though to become a U.S. citizen you must learn English.” Once again, when the case was examined by a judge, no fraud was found. Although the judge’s ruling had been issued before the column appeared, von Spakovsky didn’t mention it. He told me that the omission was justified, because the judge hadn’t investigated “the citizenship issue.” Yet the voters’ citizenship was never in doubt.

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Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy

Posted on November 11, 2020 by Luke Ford

Law professor Richard L. Hasen writes:

“Just hypothetically, Dr. Richman, if you came across the name Carlos Murguia, would you code that as foreign or non-foreign?”

It was March 2018, and Dale Ho, who directs the American Civil Liberties Union’s voting rights project, had just asked one in a series of extraordinary questions in his cross-examination of expert witnesses for the state of Kansas in arguably the most important voting rights trial so far in the twenty-first century. In the case, Fish v. Kobach, a federal district court in Kansas was considering whether the threat of noncitizen voting in Kansas elections justified a state law that required people registering to vote to provide documentary proof of citizenship, such as a birth or naturalization certificate. In most other states, signing a statement affirming citizenship under penalty of perjury is proof enough. The ACLU was concerned that the Kansas law would not prevent a significant amount of noncitizen voting but would disenfranchise many eligible Kansans who could not produce the necessary papers. Before the court suspended the law, roughly thirty thousand people had their registrations rejected or put on hold because of the new requirement.1

Kris Kobach led Kansas’s defense team. Kobach, then serving as Kansas’s secretary of state, is one of the country’s leading public figures contending that voter fraud is a major problem in the United States. He was one of a small group of public figures I previously dubbed the “fraudulent fraud squad,” who built up the myth of rampant voter fraud that Republican legislatures have used to justify severe rules making it harder to register and vote. President Trump has parroted this myth repeatedly at MAGA rallies and elsewhere. Among prominent election officials and scholars, Kobach is the only one who backed Trump’s evidence-free assertion that potentially millions of fraudulent votes were cast in the 2016 presidential election.2

At trial, Kobach took the unusual step of personally heading the legal team defending Kansas’s law rather than allowing the state’s attorney general’s office to do so. A former law professor at the University of Missouri–Kansas City, Kobach examined and cross-examined witnesses, eventually not only losing the case but facing sanctions for misleading the court, for disobeying an earlier court order to make sure that eligible voters could register while the case was pending, and for “flaunting [flouting] disclosure and discovery rules that are designed to prevent prejudice and surprise at trial.” A magistrate judge fined Kobach $1,000 for misleading the court, and the state of Kansas had to pay the ACLU’s attorney’s fees spent trying to get Kobach to comply with the earlier court order. After the trial, the judge required Kobach to take continuing legal education courses on the rules of evidence or civil procedure. He eventually had his staff use a state-issued credit card to pay the $1,000 fine and the $359 cost of his online continuing education course on civil trial fundamentals.3

The significance of the trial was not lost on those who follow the voting wars, the fights exploding in the last few decades between those who state that voter fraud is a major problem and those who consider voter suppression the real concern. Fraudulent fraud squad members such as the Heritage Foundation’s Hans von Spakovsky, who served as one of Kobach’s expert witnesses, had been arguing for years about the supposed scourge of voter fraud, and in the Fish case their claims were finally put to the test in a court of law bound by neutral rules of evidence. Presiding over the case was Julie A. Robinson, the chief judge of the Federal District Court for the District of Kansas, a fourth-generation Kansan and the first African American on that court when appointed in 2001 by President George W. Bush.4

The case ended up in Judge Robinson’s courtroom after a series of motions and appeals had already resolved many of the complex legal issues it presented. Kansas had passed its law requiring documentary proof of citizenship as a prerequisite to voter registration in 2013, and the ACLU and others contended the law violated both the Constitution and parts of the National Voter Registration Act that Congress passed in 1993. One provision of the NVRA, also known as the “motor voter” law, required that states offer voters the ability to register to vote for federal elections when applying for a driver’s license. The law mandated that state DMVs require drivers to provide no more than the minimal information necessary to ensure voting eligibility, and the form had to include a portion in which a voter attested to citizenship under penalty of perjury.5

Kobach and Kansas argued that the attestation requirement was not enough to prevent noncitizens from voting, and that despite the federal motor voter law, the part of the Constitution granting each state the power to set the qualifications for voters gave Kansas the right to require registrants to show documentary proof of citizenship. The argument fit well with Kobach’s political position as a hardliner on illegal immigration: not only were people illegally coming to the country, they were voting (and no doubt voting overwhelmingly for Democrats). Challengers to the Kansas law argued that the motor voter law preempted it and that it violated the Constitution’s Equal Protection Clause by discriminating against voters lacking easy access to documents proving citizenship.

Eventually, the U.S. Court of Appeals for the Tenth Circuit held that Kansas could require documentary proof of citizenship for people registering at the Kansas DMV only if it could prove that despite the attestation requirement, “a substantial number of noncitizens [had] successfully registered,” and that requiring documentary proof was the least intrusive way to verify voter citizenship eligibility. When the case got back to the trial court, the two main questions the court had to resolve were whether a substantial number of noncitizens had registered in Kansas under the old law, and whether the new law was so burdensome on some voters as to be unconstitutional.6

Studies had found very little evidence of noncitizen voting, and the number of prosecutions and convictions for noncitizen voting was small. In the extensive News21 database of election crime prosecutions and convictions across the United States from 2000 to 2012, noncitizen voting accusations made up only 2.8 percent of cases, just fifty-six out of more than two thousand. Those fifty-six cases resulted in two convictions and seventeen plea deals. Kobach had successfully lobbied the Kansas legislature to give him the power to prosecute voter fraud, a power unique among state chief election officers. He nonetheless prosecuted only nine cases of voter fraud through 2017, and he earned only one conviction for noncitizen voting, from a legal (not illegal) immigrant. At least seven of his cases involved prosecutions of Republicans over the age of sixty, some of whom voted both in Kansas and in another state where they owned a second home or other property.7

Despite the lack of prosecutions even as Kobach scoured the state looking for noncitizen voter fraud, Professor Jesse Richman of Old Dominion University published a report claiming that up to thirty-two thousand noncitizens in Kansas were registered to vote under the old system. Kobach then chose Richman as an expert witness for the state, no doubt because his was the only peer-reviewed study suggesting such an astonishing rate of noncitizen voting—somewhere between thirty-eight thousand and 2.8 million voters nationally. Richman’s article, coauthored with Gulshan A. Chattha and David C. Earnest and published in Electoral Studies in 2014, described the rate of noncitizen voting as so high that it might have been responsible for Barack Obama’s winning the presidential election in 2008, as well as for passage of the Affordable Care Act, thanks to the election of Al Franken over Norm Coleman in the 2008 U.S. Senate race in Minnesota, which briefly gave Democrats a filibuster-proof majority in the Senate.8

At trial, using a methodology similar to what he had used in his study, Richman concluded that up to thirty-two thousand noncitizens in Kansas had registered to vote. He based his figures on self-reported voting and citizenship status in a nationwide public opinion survey called the Cooperative Congressional Election Study. Between 2006 and 2012, fourteen self-reported noncitizens in Kansas answered the CCES survey, and four of them reported voting. Richman applied the 4/14 rate reported in the sample to the 114,000 adult noncitizens in Kansas to reach the 32,000 noncitizen voters figure.9

One wonders how Richman’s paper got published. His methodology was deeply flawed because of the very small sample size, his failure to verify the citizenship status of the fourteen self-reported noncitizens in the CCES samples for Kansas, the fact that some citizens mistakenly report their citizenship status on surveys, and the tendency of people to overreport their voting. Harvard government professor Stephen Ansolabehere, a founder of CCES and one of the nation’s leading political scientists, testified that Richman misused the CCES data and that the correct interpretation showed a noncitizen voting rate approaching zero. Ansolabehere had published a peer-reviewed response to Richman explaining his errors. Richman’s Electoral Studies analysis was so flawed that two hundred political scientists signed an open letter criticizing it.10

At trial, Richman offered three other ways to estimate the amount of noncitizen voting. One method found a rate of zero, which Richman unsurprisingly discounted. The other approaches had serious methodological flaws. One of his studies sampled a population of Kansas residents who had their voter registrations put on hold because they lacked documentary proof of citizenship. From this “suspense” list, he and his assistants tried to identify “foreign sounding” names to determine whether the list was excluding large numbers of noncitizens from registering. He admitted that this methodology required making “subjective” judgments.11

The ACLU’s Dale Ho asked Richman why he had coded some Kansas residents on the suspense list with the last name “Lopez” as foreign and others not, but he did not get a good answer. Then Ho continued with a devastating line of questioning:

Q. Just hypothetically, Dr. Richman, if you came across the name Carlos Murguia, would you code that as foreign or non-foreign?

A. I’m sorry, could you, please, spell the name.

Q. Sure. Carlos, C-a-r-l-o-s, Murguia, M-u-r-g-u-i-a.

A. Probably.

Q. Probably what?

A. Probably would code it as foreign.

Q. Okay. Are you aware that Carlos Murguia is a United States District Court Judge who sits in this courthouse?

A. I am not.12

This was social science at its worst. Unfortunately for Kobach and his team, Richman was their strongest expert witness. Hans von Spakovsky fared even worse on the stand against Ho. Although von Spakovsky identified himself as an expert on election administration and on questions of voter fraud, he had a law degree but possessed no social science graduate degree, admitted that he had written no peer-reviewed studies on election administration, and said he had “no idea” whether the methods he used for studying voter fraud comported with accepted social science standards. Despite claiming to be an expert, he could not identify anyone else in the country whom he considered an expert on noncitizen voting. He said he was not aware of any voter registration rules anywhere in the United States that were burdensome to voters.13

Von Spakovsky had a serious credibility problem. I learned about it years ago while writing my 2012 book, The Voting Wars. I had been searching for proof of a single case since the 1980s, anywhere in the United States, in which someone tried to steal an election through impersonation fraud—the only kind of fraud strict voter ID laws are designed to prevent. It is an exceedingly dumb way to steal an election, because one would have to hire people to go to the polls claiming to be someone else, hope that the people being impersonated had not yet voted, hope that the people being paid to commit felonies would actually cast a secret ballot the way the payer wants, and repeat this process undetected on a large enough scale to sway an election. It is no surprise that the News21 database covering a dozen years contained only ten possible individual cases of such fraud, and none involving a conspiracy to steal an election. Election law professor Justin Levitt found thirty-one possible impersonators casting votes out of over a billion votes cast in the United States between 2000 and 2014, and he has since come up with two recent cases of possible attempted coordinated voter fraud via impersonation.14

I had no luck finding any such case while researching my 2012 book, but von Spakovsky claimed there was proof of impersonation fraud in an unpublished grand jury report of an investigation of the Board of Elections in Brooklyn in the 1980s. He would not share the report with me, so I could not confirm or refute his findings. He later explained his refusal by saying to the New Yorker’s Jane Mayer, “What am I—his research assistant?” Once I finally got hold of the report, I saw that it did not offer any proof of impersonation fraud, only of election crimes committed by election officials and party bosses, not by voters.15

Von Spakovsky was no more credible as a witness in the Kansas case. Attempting to prove a rise in voter fraud, his pretrial expert report partly relied on a 2012 news story from an NBC television affiliate in Florida about 100 people who were excused from jury duty because they were not citizens, yet who were on the voting rolls. But he admitted on cross-examination that he had not told the court about a follow-up investigation, which showed that at least 35 of the people on NBC’s list in fact had documentary proof of citizenship. (While it does not appear that NBC followed up with the others, in 2012 the Florida secretary of state released a list of 180,000 potential noncitizens to be considered for purging. After investigation, just 85 people were removed from voting rolls as noncitizens. At the time, Florida had about 12 million registered voters.)16

Then there was the case of the Somali American voters von Spakovsky erroneously accused of voter fraud. Ho asked:

Q. Mr. von Spakovsky, in 2011 you wrote an op-ed asserting that a 2010 election in Missouri that ended in a one-vote margin of victory included 50 votes cast illegally by the citizens of Somalia. Correct?

A. Correct. But it turned out apparently that was incorrect, which is why I did not include it in my expert report.

Q. Okay. Not talking about your expert report. I just want to talk about that op-ed for a second. You wrote that op-ed claiming that 50 non-citizens from Somalia voted in an election in Missouri, despite the fact that a month earlier there had been an election challenge—there had been an election contest in that case and a state court in Missouri issued an opinion, Royster versus Rizzo, finding that no fraud had taken place in that election. Correct?

A. I don’t know when that opinion was issued. I wasn’t aware of that when I wrote the piece, which was based on other reports.

Q. You’re aware of that now, right, Mr. von Spakovsky?

A. I’m aware of that now.

Q. You never published a written retraction of your assertion about Somali[] voters illegally participating in that election, right, Mr. von Spakovsky?

A. I don’t believe so, but I don’t recall when I discovered that.17

The truth was even worse than Ho’s cross-examination revealed. Von Spakovsky’s 2011 op-ed, syndicated in newspapers across the U.S., stated, “A 2010 election in Kansas that ended in a one-vote margin of victory included 50 votes cast illegally by citizens of Somalia.” The day it appeared, I pointed out on my Election Law Blog that the disputed election took place in Missouri, not Kansas, and that a Missouri court specifically rejected the losing candidate’s claim that Somali citizens had illegally voted in the election. The next day, the op-ed appeared in more newspapers, now saying the incident happened in Missouri, not Kansas, but repeating the lie about illegal votes. Von Spakovsky had corrected the name of the state in his op-ed by, at the latest, the day after he wrote it. But no retraction for his more substantive error has run at the time I write these words.18

Before the trial, both von Spakovsky and Kobach had described the noncitizen voting so far discovered in Kansas and elsewhere as merely the “tip of the iceberg.” Ho suggested that the two had coordinated their messaging, but whether or not they did, Fish v. Kobach was their chance to reveal the iceberg for all to see. If tens of thousands, maybe millions, of noncitizens were voting in the United States, and Kobach had been empowered to prosecute it in Kansas, there should be some evidence of this massive fraud. But he had nothing to show.19

In an opinion issued a few months after the trial, Chief Judge Robinson found that Kansas’s documentary proof of citizenship law imposed a serious burden on the state’s voters. She credited the testimony of plaintiffs’ expert Michael McDonald that the burden fell most heavily on the young and those unaffiliated with a political party, and she noted that tens of thousands of Kansans had had their voter registration applications put on hold or rejected.20

She further concluded that the burden on these would-be voters was unjustified. There was likely a minuscule amount of noncitizen voting in Kansas, but the few reports of potential noncitizen voting were more likely the result of administrative error or misunderstanding of the law than attempted felonies. “Evidence that the voter rolls include ineligible citizens is weak. At most, 39 [non]citizens have found their way onto the Kansas voter rolls in the last 19 years. And, as [plaintiffs’ expert] Dr. [Eitan] Hersh explained, given the almost 2 million individuals on the Kansas voter rolls, some administrative anomalies are expected. In the case of Kansas, this includes 100 individuals in [the state database] with birth dates in the 1800s, and 400 individuals with birth dates after their date of registration.”21

“There is no iceberg,” the judge concluded, “only an icicle, largely created by confusion and administrative error.”22

Kobach’s previous foray into the voter fraud fever swamp during the Trump era was the “Presidential Advisory Commission on Election Integrity.” President Trump established this commission to back up his unsupported claims of massive voter fraud, which he advanced as the reason Hillary Clinton won the popular vote in the 2016 presidential election. Trump named Vice President Mike Pence the nominal chair of the commission, but Kobach, the vice chair, was the driving force behind its operation. Kobach ran the commission meetings and seemed to dictate its agenda. Trump had established the commission in May 2017, but the following January, before the start of the Fish v. Kobach trial, he dissolved it with none of its work completed. It never issued a report.23

Trump’s commission to deal with phantom voter fraud looked like nothing that had come before it. After the 2000 election debacle that culminated in the Supreme Court case of Bush v. Gore, former presidents Jimmy Carter and Gerald Ford headed a blue-ribbon bipartisan commission looking for ways to improve the elections process. After more problems at the polls in 2004, Carter and former Republican secretary of state James Baker headed another commission. After long lines and still more problems in 2012, President Obama established a commission headed by his campaign lawyer, Bob Bauer, and Mitt Romney’s campaign lawyer, Ben Ginsberg. Each of these commissions was led by a prominent Democrat and a prominent Republican, with bipartisan representation and a professional staff. They received expert advice from the top social scientists in the United States studying elections.24

The Bauer-Ginsberg commission, aided by its research director, Stanford law professor Nate Persily, issued a set of bipartisan proposals for shortening lines at the polls, ensuring that voter registration rolls were accurate, and making sure that eligible voters would be able to vote in an efficient way. It was no accident that Brian Britton, vice president of Global Park Operations and Initiatives at Walt Disney World Company and an expert in queue management at Disney’s theme parks, sat on the commission.25

It was clear from the beginning that Trump’s commission was different. We will return to candidate Trump’s race-tinged and fact-free comments about voter fraud in chapter 4. But as soon as Trump took office, his administration removed from government servers, without explanation, the website and research of the Bauer-Ginsberg commission. In May 2017, he announced his new commission to look into voter fraud. Gone was bipartisan balance: the Republican Pence was appointed chair and the Republican Kobach was vice chair.26

The names of the commissioners were rolled out over weeks rather than announced all at once, as had been done with the other commissions. Eventually, four of the most notorious proponents of the myth of rampant voter fraud—Kobach, von Spakovsky, J. Christian Adams, a former Department of Justice lawyer, and former Ohio secretary of state Kenneth Blackwell—all joined. The Lawyers’ Committee for Civil Rights under Law dubbed them “President Trump’s Four Horsemen of Voter Suppression.”27

Adams, a frequent Fox News guest who warned of the dangers of voter intimidation by repeatedly citing the actions of a couple of “New Black Panthers” at a single Philadelphia polling place in 2008, now headed the Public Interest Legal Foundation. Among its other activities, PILF issued a report warning of an “alien invasion,” complete with an illustration of “a 1950s-style flying saucer approaching bucolic Virginia,” and giving the names of purported noncitizens on the Virginia voting rolls. Some of those falsely named “noncitizens” sued Adams for defamation, and Adams apologized to settle the suit. Blackwell was perhaps best known for his decision in 2004, which he later reversed under pressure, to have Ohio election officials reject some voter registration forms because the applications were not printed on heavy enough paper.28

I myself received a shout-out from Adams in documents released in litigation after the commission closed. In an email exchange with von Spakovsky and some PILF employees at the time of the commission’s founding, Adams commented on my earlier criticism of their work perpetuating the voter fraud myth: “Rick Hasen is a raw enemy activist. . . . He is the central organizing location of our foes. He is going to get very ugly toward me and Hans when/if we are nominated by the President to the Voter Fraud Commission.” Logan Churchwell, the spokesperson for PILF, urged Adams to “push” my “buttons” so I would become “unhinged.” “Sick of him being the elder statesman in the eyes of the MSM [mainstream media].”29

When fully constituted, the commission had seven Republicans and five Democrats. Three of the five Democrats were unknown nationally in the election administration field. The other two were Bill Gardner, the secretary of state in New Hampshire, and Matt Dunlap, Maine’s secretary of state. Some Democrats who had long viewed Gardner with suspicion thought their doubts were confirmed when he agreed to serve on the commission. Dunlap claimed he joined in order to watch the process from the inside, a stance several election experts, including me, thought was naïve, but he later played a key role in the commission’s downfall.30

We later learned from partially redacted documents, released through a Freedom of Information Act request, that the lack of partisan balance on Trump’s voter fraud commission was a feature and not a bug. Before Trump named any members, von Spakovsky sent an email, which later got forwarded to Attorney General Jeff Sessions, laying out the case for excluding Democrats, academics, and “mainstream Republicans” from the commission. He and Adams were offered spots on the commission soon after.

Once it got going, the commission immediately ran into problems. Kobach directed staff to request individual voter registration records from each state, including names, addresses, dates of birth, and Social Security numbers. Apparently he meant to look for registered noncitizens by comparing those data to citizenship records at the Department of Homeland Security. Many states balked.

Some Democratic officials expected the matching procedure to be flawed and suspected the commission’s work would be used as a pretext for tougher federal or state voter registration rules. California secretary of state Alex Padilla released a statement reading in part: “California’s participation would only serve to legitimize the false and already debunked claims of massive voter fraud made by the President, the Vice President, and Mr. Kobach. The President’s Commission is a waste of taxpayer money and a distraction from the real threats to the integrity of our elections today: aging voting systems and documented Russian interference.”32

Some Republican officials thought the federal request was an intrusion on state sovereignty. Before he even received the commission’s letter, Mississippi secretary of state Delbert Hosemann said in a statement: “They can go jump in the Gulf of Mexico and Mississippi is a great state to launch from. . . . Mississippi residents should celebrate Independence Day and our state’s right to protect the privacy of our citizens by conducting our own electoral processes.” Colorado citizens began canceling their voter registrations after the state agreed to comply with the request because they did not want the Trump administration to have access to their data. They reasoned that they could use Colorado’s same-day registration policy to reregister whenever they wanted to vote.33

Then there were the lawsuits. Common Cause and others sued the commission for violating the Privacy Act, which bars government collection of sensitive personal information under certain circumstances. The suits eventually led to the destruction of all collected voter data after the commission disbanded. Other suits argued that the commission’s rules violated the federal Paperwork Reduction Act as well as various state laws protecting the privacy of voter information.34

Maine secretary of state Dunlap, one of the two prominent Democrats on the commission, sued it for violating a federal law governing transparency and fairness in the operation of presidential advisory commissions. He and other commissioners alleged that Kobach was acting in secret and without input from Democratic commissioners. Dunlap won and eventually obtained several commission documents he had not been allowed to see—which he then publicly posted. The released documents showed that even before they joined the commission, von Spakovsky and Adams were providing specific suggestions to Kobach and commission staff (but not its Democratic members) about the exact information to request from each state regarding its voter registration practices. The documents also show the commission never uncovered any evidence of significant voter fraud. The failure to find evidence supporting the need for laws to combat noncitizen voting and voter impersonation is the only plausible reason for the commission’s lack of transparency.35

The members met only twice. After their first official opening meeting, in Washington, D.C., in July 2017, they met in September 2017 in New Hampshire, where they were hosted by Secretary of State Bill Gardner. In that meeting, Kris Kobach presented and then walked back unsupported assertions he had first floated on the Breitbart website, that bused-in Massachusetts residents illegally voted in the Granite State.

Another meeting was planned for late January 2018, but President Trump pulled the plug on the entire enterprise, blaming “endless legal battles at taxpayer expense” and lack of cooperation from Democrats. He did not mention Republican resistance or Mississippi secretary of state Hosemann’s suggestion about local swimming spots. Kobach told Breitbart that the effort to find evidence of noncitizen voting would continue at the Department of Homeland Security, without Democratic interference and lawsuits: “The investigation will continue, and it will continue more efficiently and more effectively. . . . By throwing their food in the air, they just lost their seat at the table.” He told NPR that he would remain as an “outside adviser” on the project. That announcement was quickly rebuffed by DHS officials, who said Kobach would play no role. As far as we know, DHS conducted no subsequent investigation of noncitizen voting.36

One White House adviser, or perhaps it was Vice President Pence himself, told CNN that the commission was a “s[hi]t show” that had gone “off the rails.” The adviser suggested that the vice president’s “team . . . should have seen that assignment as a s[hi]t sandwich and treated it like a book report. . . . Avoid trouble, cite real instances of voter fraud, address structural and technology problems, make recommendations and move on.”37

The collapse of the Pence-Kobach fraud commission and the Fish v. Kobach trial were watershed moments in the modern history of voter fraud mythmaking and attempts at voter suppression. For years, people like Kobach and von Spakovsky had spun stories of voter fraud by relying upon anecdotal accounts, innuendo, falsehoods, and accusations that almost never panned out. Most of this cheap talk was not subjected to cross-examination or rigorous study. The trial and commission fiasco changed all that.

The only rational conclusions to be drawn from these two episodes are that voter fraud is extremely rare, and that spurious claims more likely serve as a pretext for passing laws aimed at making it harder for people likely to vote for Democrats to register and to vote. Kobach rejected this premise, telling NPR’s Robert Siegel after the collapse of the commission that “critics were making a bizarre and frankly idiotic argument. They were claiming that by looking at the issue of voter fraud, that was going to cause state legislatures to pass laws that would, in their view, make voting more difficult.”38

But it was Kris Kobach, meeting with Trump during the 2016 presidential transition period, who used false claims of massive voter fraud as a basis for recommending legislation amending the federal motor voter law to allow states to require documentary proof of citizenship before voting. And the commission that Trump picked Kobach to head was designed to provide cover for such legislation. A sharp-eyed AP photographer captured a picture of Kobach holding a briefing outline after his meeting with Trump that included that recommendation; the $1,000 fine Kobach later received in the Fish case was for misleading the court and the ACLU about the outline’s content. He apparently had modeled his proposed amendment to match what the ACLU, in a 2016 legal brief, wrote that the motor voter law would have to look like if it in fact allowed Kansas to require documentary proof of citizenship before voting.39

Fish and the commission’s work showed that noncitizen voting and voter impersonation fraud weren’t icebergs, or even icicles. They were puddles that evaporated in the sunlight of public inspection and legal examination.

Posted in America, Voter Fraud | Comments Off on Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy