The Right to Vote

by Alexander Keyssar

  Whether the EAC was, in fact, pressured by Republican officials remains unclear despite a formal investigation by the commission’s inspector general.71 But there can be little doubt that a wing or faction of the national Republican Party was intent on establishing that fraud had become so pervasive that it threatened the fabric of American democracy. In a speech to Republican lawyers in 2006, Karl Rove, President Bush’s top political adviser, warned that there was “an enormous and growing problem with elections in certain parts of America today.” It was, he maintained, “beginning to look like we have elections like those run in countries where the guys in charge are colonels in mirrored sunglasses.” A year earlier, the Senate Republican Policy Committee had insisted that “voter fraud continues to plague our nation’s federal elections, diluting and canceling out the lawful votes of the vast majority of Americans.”72

  Making the public case about fraud appears to have been the impetus behind the creation, in 2005, of the American Center for Voting Rights, a formally nonpartisan, nonprofit organization led by Mark Hearne, a lawyer who had worked for the Bush/Cheney campaign and maintained close ties to Rove. Within days of the organization’s founding, Hearne testified to a House committee about the “unprecedented number of fraudulent voter registrations” in Ohio in 2004. Several months later, the ACVR issued a detailed report on “Vote Fraud, Intimidation and Suppression in the 2004 Presidential Election.” The report listed numerous allegations of fraud in sixteen states (almost all involving Democrats) while asserting that “paid Democrat operatives were far more involved in voter intimidation and suppression activities than were their Republican counterparts.”73

  Hearne’s testimony and the ACVR’s reports were forceful productions, and they succeeded in getting the ACVR a seat at the table in debates about election reform—which was remarkable for a new organization that had no office, undisclosed financial support, and an address that turned out to be a mailbox in Dallas. Hearne made frequent media appearances, transmitted reports to Congress and the Justice Department, and was named as an “academic adviser” to a commission headed by former president Jimmy Carter and former secretary of state James Baker. The ACVR, in effect, became the conservative counterweight to the voting-rights think tanks and advocacy organizations that had been in operation for years and that had generally concluded that fraud was not one of the pressing problems facing American democracy. The meteoric rise of the ACVR, however, drew criticism as well as attention, first in the blogosphere and then in the mainstream press. Many of its allegations of fraud were sharply disputed, and its claim to be nonpartisan (and thus tax exempt) seemed to strain credulity. The Pittsburgh Tribune-Review called the ACVR itself a “fraud,” while other critics lambasted it as a front for the Republican Party rather than a nonprofit center for research. In the spring of 2007, as Hearne and some of his allies began to come under scrutiny for their roles in the controversial firing of eight U.S. attorneys, the ACVR suddenly and, without explanation, disappeared. Its website was abandoned, its reports vanished, and references to the organization were removed from the biographies of its principal actors.74

  The firing of the U.S. attorneys in late 2006—a highly unusual step by an administration in the middle of its second term—also had roots in the preoccupation with voter fraud. At least three of the eight federal prosecutors who were fired, and five of the twelve who had been originally targeted, had antagonized high-ranking Republican officials, including Karl Rove, because of their failure to zealously prosecute alleged instances of fraud by Democrats. John L. McKay of Washington, for example, was criticized for taking no action in response to Republican fraud claims in the 2004 gubernatorial election, which the Democrats had won by a razor-thin margin. “They wanted me to go out and start arresting people,” he later told an interviewer. But there was “no evidence.” Todd Graves of Missouri, a swing state in presidential elections, had refused to support a Justice Department lawsuit against the Missouri secretary of state for not purging the state’s registration lists; in addition, he had brought only four misdemeanor voting fraud indictments in his five years in office, despite recurrent claims of widespread irregularities. In New Mexico, another swing state, David Iglesias, a highly rated conservative, was pressured by Bush campaign lawyers in 2004 to pursue charges stemming from faulty registration cards that had been turned in during a registration drive conducted by a liberal activist group, ACORN (Association of Community Organizations for Reform Now). Iglesias investigated more than one hundred allegations (not all of which were linked to ACORN), found few that had any merit, and concluded that none warranted indictment. His decision led to complaints to the Justice Department from Rove and President Bush as well as from Patrick Rogers, a local attorney who had been active in the ACVR.75

  The forced resignations of these three officials, coupled with evidence that voting issues had also played a role in targeting others for possible firing, demonstrated not only that the Justice Department had become highly politicized, but also that the issue of voter fraud had acquired an outsized partisan urgency for some influential Republicans. Iglesias himself commented that both Patrick Rogers and Karl Rove were “obsessed” with the matter, and that obsession may have clouded the strategic judgment of Rove and his colleagues. Firing federal prosecutors with good job-performance ratings was a risky step, particularly with the Democrats regaining control of Congress: it soon backfired, leading to the resignations of several top Justice Department officials and contributing to the fall of Attorney General Alberto Gonzales. Ironically, the episode—and its gradual public unveiling in the spring of 2007—also made plain that not all Republicans shared the preoccupation with fraud or believed it to be a compelling problem. Iglesias and McKay, among others, were willing to investigate allegations put before them, but they concluded that there had been few significant violations of the law in the states in which they lived and worked.76

  Indeed, despite Rove’s sunglass-wearing colonels and Hearne’s heated rhetoric, very little evidence was developed during these years to support the claim that voter fraud was widespread. In 2002, Attorney General John Ashcroft had announced that “election fraud and corruption offenses” were a top priority of the Justice Department, yet over the next five years only 120 indictments were filed, yielding 86 convictions in jurisdictions scattered around the nation. Most of the charges that were brought, moreover, involved individuals who were mistaken about their eligibility (including both immigrants and ex-felons) or participants in small-scale vote-buying schemes for relatively obscure local offices. In Florida, a legal immigrant (but noncitizen) from Pakistan was convicted of a misdemeanor and deported because he had filled out a voter registration form while renewing his driver’s license. A Milwaukee woman went to jail for a year because she voted while on probation, even though she had tried to rescind her vote when she learned that she was ineligible.77

  Yet no evidence materialized of any large-scale, organized efforts to affect the outcomes of either federal or state elections through fraudulent voting. Thor Hearne’s bill of particulars regarding registration fraud in Ohio did not lead to the filing of any criminal charges: Dick Tracy may have been registered to vote, but neither he nor Mary Poppins actually voted. To be sure, the paucity of criminal charges could not prove that crimes themselves were rare, but, given the intensity of the spotlight focused on the issue, the scantiness of state or federal charges was difficult to reconcile with the conviction that fraud was systematic. Moreover, as political scientist Lorraine Minnite pointed out in one of the few careful studies of the subject, many of the widely mentioned instances of alleged fraud turned out, upon investigation, to have other explanations: mistaken news reports, sloppy record keeping, methodologically inadequate efforts to match names on different lists, grossly mismanaged registration systems, clerical errors by election officials, voter error, unhappy losing candidates, and disgruntled ex-employees. To cite just one example, the frequently repeated news report that 132 dead people
had voted in Detroit proved to have nothing to do with corruption. As Michigan’s Republican secretary of state eventually reported, absentee ballots had been mailed to 132 people who then died in the weeks before election day. The vast majority had not filled out their ballots.78

  The 2008 election campaign reprised the themes that had played out during the preceding eight years. A core strategic effort of Senator Barack Obama’s campaign, both in the Democratic primaries and in the general election, was to register new voters, particularly among the young, the poor, and minorities. Partly in response, Republicans raised questions about the swelling registration lists: among other steps, they tried to impede the registration of college students in key states, and they put forward proposals to match registration lists against other databases, suggesting that discrepancies could provide a basis for challenging a registered voter’s right to cast a ballot. The resultant skirmishing included partisan crossfire within state governments as well as a host of lawsuits from campaign attorneys who were primed to combat any sign of either fraud or voter suppression.79

  The temperature heated up in October when law enforcement officials in Nevada raided the offices of ACORN—which, as in 2004, was conducting voter registration drives in numerous states. Republicans in Nevada and several other states charged that ACORN, a national community-organizing group with links to the Obama campaign, was engaged in large-scale voter-registration fraud. That inflammatory charge was grounded in the fact—undisputed by ACORN—that the organization had handed in to election officials thousands of registration forms with phony names, including Mickey Mouse and the entire lineup of the Dallas Cowboys football team. ACORN attributed the fraudulent forms to employees who had acted inappropriately and contrary to instructions; it also pointed out that ACORN itself had flagged many of the phony forms for election officials and that, in most states, organizations registering voters were required by law to turn in all completed forms, whether or not they seemed legitimate. To Republicans, the ACORN “scandal” was proof that Democrats were trying to steal the election; most Democrats and voting activists reacted dismissively, arguing that no systematic fraud was intended and that fictional registrants were extremely unlikely to show up at the polls. Democrats also viewed the claims against ACORN as a pretext for further Republican efforts to suppress legitimate voters.80

  The ACORN affair reached its zenith of visibility during the third presidential debate of the campaign, when Senator John McCain, trailing significantly in the polls, heatedly observed that ACORN “is now on the verge of maybe perpetrating one of the greatest frauds in voter history in this country, maybe destroying the fabric of democracy.” The assertion was extraordinary, and it brought even more attention to ACORN and its obviously flawed practices. Nonetheless, within a few days of the debate, the ACORN matter began to recede from view, and after Obama’s decisive victory on November 4, no Republican leaders maintained that registration fraud had had any impact on the election. Nor, notably, did the victorious Democrats make any postelection claims of widespread voter suppression on the part of Republicans. The rhetorical battle, for a time at least, was paused.81

  Identify Yourself

  Although the problem of fraud may, in fact, have been miniscule, even inconsequential, the Republicans’ preferred solution to it gained ground during the years leading up to the 2008 election. Beginning soon after the 2000 election and accelerating after 2004, Republicans around the nation pressed state legislatures and Congress to pass legislation that would require all prospective voters to present government-issued photo-identification documents when they showed up at the polls. These proposals were justified in the name of fraud protection and advocated, by Republican politicians as well as operatives like Mark Hearne, as essential weapons in the fight to restore the “integrity” of American elections.

  Not surprisingly, existing identification requirements varied considerably from state to state. Many states already insisted that voters present some form of identification at the polls, but a wide array of documents (with and without photographs) could satisfy the requirement: utility bills, paychecks, bank statements, and driver’s licenses commonly did the trick. In a few states, such as Louisiana, photo ID was requested, but a voter who lacked such a document could sign an affidavit instead. In nearly half of all states, no identification was demanded except of those persons who fell under the HAVA rule, i.e., they were first-time voters who had registered by mail and had not provided identification when they registered.82

  Republicans maintained that this state of affairs was an invitation to election fraud. An imposter could turn up at a polling place, pretend that he was someone else, and cast a ballot—unless he, unluckily, pretended to be someone who was personally known to a precinct worker. Even more devious imposters could generate phony utility bills on their home computers. A government-issued photo-ID requirement could prevent such crimes—or at least make them more difficult to execute. The core argument for tightening things up was straightforward and, according to opinion polls, not lacking in public support. In an era when photo ID was needed to board an airplane or enter an office building, it was surely not unreasonable to impose similar safeguards on the ballot box. An added benefit—and a later twist to the argument—was that photo-ID requirements would restore confidence in elections among “legitimate” voters who worried about the possibility of fraud (whether or not such fraud existed). The campaign to institute these safeguards received a major boost in 2005 when the concept was endorsed by a majority of the bipartisan Carter-Baker election reform commission.83

  The proposals for photo ID were met with sharp resistance and partisan opposition. Critics were quick to point out that the rationale for such reforms was flawed, if not spurious: not only was election fraud, in general, rare, but the type of fraud that ID requirements could deter—the in-person impersonation of a voter—was almost nonexistent. Georgia’s secretary of state indicated in 2005 that she could not recall a single documented instance of such fraud during her ten years in office. The Democratic leader of the Kansas state senate insisted that a proposed ID law was “a solution in search of a problem.” Kansas Governor Kathleen Sebelius vetoed the measure in 2008, concluding that it sought “to solve a problem of voter fraud which does not exist in our state.”84

  More significantly, opponents maintained that photo-ID requirements would effectively disfranchise large numbers of voters. Men and women who had driver’s licenses or passports could easily meet the requirements, but in every state there were thousands of eligible voters who did not possess those documents. According to the 2001 Carter-Ford Commission, as many as nineteen million potential voters nationwide did not possess either a driver’s license or a state-issued photo ID. Even if a state created procedures for those individuals to obtain photo IDs (as was proposed in all of the pending bills), the procedures themselves were inherently burdensome and potentially costly. Moreover, the men and women most likely to be adversely affected (those without a driver’s license) were not a random cross-section of the population: they were disproportionately young, elderly, poor, and African-American—which meant, of course, that they were significantly more likely to vote Democratic than Republican. To Democratic legislators across the country, photo-ID requirements were simply a new, legal form of voter suppression designed to serve partisan Republican interests.85

  Nonetheless, identification requirements were tightened in a variety of states, and, after the 2004 elections, Republicans succeeded in passing relatively strict photo-ID rules in several, including Arizona, Georgia, Indiana, and Missouri.86 (Measures were vetoed in a few places, including Pennsylvania and Michigan.) All of these laws were challenged in the courts as violations of state and federal constitutional principles, as well as the Voting Rights Act. The most common arguments were that they imposed an undue burden on the right to vote, that they had disparate impacts on different classes of citizens, and that they amounted to extra-constitutional franchise requirements that cou
ld not be put in place by legislatures alone. The responses of the courts, both state and federal, were mixed. In October 2006, the Missouri State Supreme Court struck down its law, but several days later the U.S. Supreme Court, overruling a circuit court decision, permitted Arizona’s measure to remain in effect for the November election. Georgia’s law, which in its original form compelled citizens to buy a new card from the state if they did not already possess government-issued photo ID, was precleared by the Justice Department, which surprised many voting rights experts. Nonetheless, it was struck down in federal court as an unconstitutional tax on voting. The state then revised the law, making the new IDs free of charge; the revised version passed muster with the same federal judge who had tossed out the original bill.87

  The uncertainties in the lower courts led the Supreme Court to intervene: in the fall of 2007, it agreed to hear the case of Crawford v. Marion County Election Board, a challenge to the constitutionality of Indiana’s ID law. The Indiana law, approved by the state legislature in a stunningly partisan vote—no Republicans voted against it, while no Democrats voted for it—was the strictest in the nation. It required voters to present an unexpired government-issued photo ID; those who showed up at the polls without such a document could cast provisional ballots that would be counted only if the voter reported to a county clerk’s office to present the requisite ID within ten days of the election. An appeals court panel of three judges had approved the law by a 2-1 vote that also followed party lines. Although the state of Indiana acknowledged that there had been no recent instances of the kind of voter impersonation fraud that the measure would prevent, the panel’s majority concluded that few prospective voters would be burdened by the law and that “voting fraud impairs the right of legitimate voters to vote by diluting their votes.” Judge Terence T. Evans, the Democrat who dissented from the decision, took a more cynical view. “Let’s not beat around the bush,” he wrote. “The Indiana voter photo ID law is a not-so-thinly veiled attempt to discourage Election Day turnout by certain folks believed to skew Democratic.”88