Inside Job

by Steven Rosenfeld

  Republicans know they cannot hold onto power when their base is aging and shrinking compared to the rest of the country’s demographics. So they have seized upon a prejudice-fueled strategy as an excuse to overly police the process in pursuit of a phantom menace: Illegal Democratic voters. Despite producing no evidence that this is a real problem of any magnitude, combating voter fraud has become the GOP’s go-to excuse this century to pass scores of state laws that complicate voting for entire populations trending blue. Those laws peel off slices of Democratic voters—percent by percent. Every year, hundreds of thousands of ballots are spoiled, misread, or disqualified across the country.88 Yet Republicans don’t ever complain about that—or make federal cases over it.

  Nonetheless, because the voter fraud meme draws on partisan vitriol, serves a partisan purpose, and crucially—there is no federal agency that definitively tracks it89—the GOP has been using it to pass a spectrum of state laws and rules to intentionally disrupt voting.90 The GOP persists despite investigations by the Department of Justice, federal courts, Congress, academics, and journalists, some of whom have noted real-world instances of illegal voting are literally rarer than getting hit by lightning.91 Another confirmation came in April 2017 in a federal court ruling that threw out a Texas 2011 voter ID law as racially discriminatory against blacks and Latinos. The ruling noted that Texas had “two convictions for in-person voter impersonation fraud out of 20 million votes in the decade leading up to SB 14’s [the law’s] passage.”92

  Numbers like that are not unusual. After the incumbent GOP governor of North Carolina, Pat McCrory, narrowly lost his 2016 reelection bid, his campaign consultants challenged the results by saying six hundred people fraudulently voted. They hastily fabricated and filed legal papers that named innocent people who were smeared in the local press. It was a ruse to try to throw the governor’s race to its legislature, where Republicans held the majority. The State Board of Elections’ April 2017 report found only two people impersonated another voter in 2016—“family members voting in place of a recently deceased loved one.”93 That was out of 4.6 million votes cast.

  The right-wing Heritage Foundation’s post-2016 report of all national examples of false registrations, ineligible voting, fraudulent use of absentee ballots, and duplicate voting cites 492 cases and 733 convictions from 1982 through 2016.94 That is one case for every 2 million presidential election voters from 1984 to 2016 (approximately 980 million votes were cast).95 If you count by convictions, where some people pleaded to more than one charge, that total was still less than one in a million voters. Although there were more elections in America and multimillions more people voting in this period, which further dilutes their figures, Heritage nonetheless uses its report to further police the polls.

  But made-up menaces serve a purpose. Republicans know it doesn’t matter if they are pilloried in the press as long as they manipulate the rules of voting and elections. They don’t care if political gain means disadvantaging opponents, including racially hostile tactics and openly discriminatory results. Looking back, I was present when a messenger arrived to herald the return of this phantom menace and its sleazy rationale. It was more layered and consequential than I realized at the time. But not taking this ruse seriously is exactly how Republicans finesse restrictions on voting into law and elections.

  The confrontation pitted some of the civil rights movement’s heroines—women born under segregation who became members of Congress—against this century’s voting suppressors. Like Karl Rove’s Wall Street Journal op-ed on REDMAP’s strategy, it heralded a national wave of anti-voting tactics that continues today. Trump’s Commission on Election Integrity, announced in spring 2017, is being cochaired by, and has seated people, whose attacks on nonwhite voters began during this time. Since he took office, more states have passed anti-voter laws than during the Obama Administration’s final two years. The rationale was countering the made-up menace of voter fraud.96

  The setting in 2004 was a city auditorium in Columbus, Ohio. The Committee on House Administration, which oversees elections, was holding a hearing blandly entitled, 2004 Election and the Implementation of The Help America Vote Act.97 That law provided several billion dollars to states to buy new electronic voting machines as the response to Florida’s problem-plagued presidential election in 2000. The hearing’s title papered over two competing agendas. The committee’s Republican chairman, Ohio’s Bob Ney, wanted to place a whitewashed version of what happened in Ohio into the record. Weeks before, the House Judiciary Committee’s Democrats had other ideas and took testimony detailing partisan barriers that delayed and disenfranchised tens of thousands of voters.

  Seated besides Ney were two now-deceased black Democratic congresswomen. Stephanie Tubbs-Jones, Ohio’s first black congresswoman, was an ex-judge and local prosecutor from Cleveland. Six weeks before she stood in the US Capitol building with California Democratic Sen. Barbara Boxer to challenge the ratification of the 2004 Electoral College vote. They forced the House and Senate to return to their chambers and hear complaints about GOP-led voter suppression for two hours. Juanita Millender-McDonald was a PhD educator representing Los Angeles who grew up in Alabama. They came to question Republicans such as Ohio Secretary of State Kenneth Blackwell, who refused to shake Tubbs-Jones’ hand and then bragged about that as a witness. Bleackwell is at the time of this writing on Trump’s election integrity commission.

  State Senate President Jeff Jacobson testified he didn’t understand why Ohio had become a poster child of problem voting. Without blinking, Millender-McDonald asked about one notorious tactic. Why had Blackwell’s office told county officials to reject registrations that weren’t printed on 80-pound paper—a heavier stock than copied forms used by grassroots groups? Jacobson’s surreal reply hinted at the GOP’s arguments to come, and not just in Ohio—but on Fox News for years.

  “I would just say that fraudulent registrations are not part of the American way and groups that are paid to come in and end up registering Mickey Mouse and some of the other people that were registered in return for crack cocaine, the millions of dollars that poured in, in an attempt to influence Ohio, I think, is not normal and I would just state that it did make all of our jobs quite a bit more difficult,” Jacobson said, justifying efforts to reject registrations turned in by civil rights groups like the NAACP or antipoverty groups like ACORN, the Association of Community Organizers for Reform Now.98

  Millender-McDonald was as dignified as the state senator was unbound.

  “Mr. Jacobson, I would hate for you to characterize voters as crack cocaine,” she began, carefully choosing her words. “Please do not characterize those who are doing the registration of people—”

  “You may not be aware of what specifically happened,” he interrupted. “A gentleman was arrested and I think pled guilty that he was paid in crack cocaine for submitting registration cards and the registration cards that he submitted included Donald Duck, Mickey Mouse, Mary Poppins, and all kinds of others.”

  “Of course we have heard that, but is that not one incident of the many?” she said. “We have to be very careful that we do not show any semblance of arrogance on the parts of those who wish to vote and let their vote be counted. There are many minorities in this state and in every state who have been at the throws of not letting their votes be counted.”

  That exchange showed one party giving voters the benefit of the doubt and the other party doubting voters. It pitted the lessons from last century’s voting rights movement against this century’s vote suppressors. Despite his bluntness, Jacobson signaled the start of the GOP argument and strategy: seize on singular incidents of malfeasance—such as a registration group’s bad hire who forged voter applications, which is easily caught and prosecuted. Then hype that lone example into a menace to justify new laws that intentionally complicate voting for entire statewide populations, but especially targeting Democrats.

  Millender-McDonald urged him not to respond disproportionately
—but that was what the Republicans in Ohio and nationwide intended to do. Later that afternoon as she left for the airport, the most important witness testified and submitted a written report. Mark ‘Thor’ Hearne cut his remarks short because of the hour. He was a Missouri lawyer who worked with Rove on Bush’s 2004 campaign. No Democrat there knew him. Nor had anyone heard of the American Center for Voting Rights he represented. Its website was launched only a few days before. As the Democrats focused on the election that barely ended, Hearne and the GOP looked to the future. He had come to launch a new wave of voter suppression.

  “Reprehensible acts” marred the 2004 election, Hearne said, such as the submission of fake registration forms by left-leaning groups associated with the Democrats. He spoke of “an onslaught made against the Ohio election system,” including lawsuits from civil rights groups that “caused great chaos and confusion and difficulty for the election officials seeking to implement Ohio law and made it more difficult to have a fair and honest election.” His prepared remarks, which he submitted after condensing them, were more pointed. “Voter fraud was reported in every corner of the state and fraudulent voter registrations totaled in the thousands,” his script said. “Ohio citizens deserve the confidence that they—the voters—not trial lawyers, activist judges and special interest groups soliciting voters with crack cocaine determine the result of Ohio elections.”99

  Hearne also submitted a report for the Congressional Record, which Ney accepted. It was a declaration of political war. Hearne and its coauthors, all Republican lawyers, went after every major Democratic political committee, voting rights organization, labor union, and antipoverty group. It cites “MoveOn operatives,” polls “stalked by ACLU and ‘voter rights’ operatives,” and even a “table operated by MoveOn that promised ‘Free Coffee.’” These examples were beyond shrill, but they served a partisan point. Everyone Hearne cited not only supported expanding voting rights, but was a coconspirator in a vast conspiracy—a characterization that endures today as Republicans keep pounding the voter fraud drum.100

  Hearne’s report did cite one-off mistakes by people working for registration groups like ACORN—who, as noted in the Heritage Foundation’s 2016 report, were quickly caught by authorities. Every election has human errors, hubris, and passionate excess. But in a state with 5.7 million presidential voters in 2004, there is a false equivalency between isolated events where no illegal votes resulted, and statewide remedies complicating the process or preventing tens of thousands of voters. As Millender-McDonald warned, what matters is separating the one from the many.

  Neither Hearne nor any Republicans at that hearing cared about twenty-six thousand Ohioans whose regular ballots were not counted, nor about thirty thousand Ohioans given provisional ballots that were later disqualified, nor about tens of thousands who waited hours in the rain because polls in Democratic cities didn’t have enough voting machines.101 Instead, they signaled the GOP would soon revive its pursuit of voter fraud with the White House fully behind it.

  As Michael Waldman put it in his book, The Fight To Vote, Republicans were chasing the one problem that did not exist. But they chased it. Two years later, after three hundred investigations by the Justice Department, 119 people had been charged with voter fraud nationwide, with eighty-six convictions. One was a Wisconsin ex-felon who voted before his voting rights had been restored. In West Virginia, a sheriff, police chief, and a court clerk were caught paying residents $20 to vote for a slate of local candidates.102 This is truly small-time stuff. That record, nonetheless, prompted Bush’s Attorney General, Alberto Gonzales, to fire seven federal prosecutors—which caused a scandal eventually leading to resignations by Gonzales and Rove, then a senior White House strategist.103

  The voter fraud meme did not stop there. It solidified into a doctrinaire Republican belief that Democrats steal elections—when, if anything, it is the Republicans who are guilty of this crime in the early twenty-first century. As the 2008 presidential race closed, GOP nominee John McCain accused ACORN of “perpetuating massive voter fraud,” even though there was no proof. After Democrats won the White House and Congress that year, REDMAP emerged.104 The GOP won key statehouse majorities in November 2010, but Republicans did not only set their sights on redrawing districts. Many believed McCain’s finger-pointing. Fox News and Breitbart.com kept the hysteria alive. They now had majorities to solidify Republican advantages by rewriting more rules for voting.

  The first thing Republicans did after their extreme redistricting was go after voting rights. In legislative sessions starting in January 2011, GOP voter suppression moved forward big time. Backed by front groups and right-wing legislation mills like the American Legislative Exchange Council, GOP legislators introduced more than 180 bills in forty-one states to toughen voter ID laws, cut back early voting, and penalize registration drive errors.105 The argument—made by some of the same people now on Trump’s “election integrity” commission—was to combat voter fraud. Rhetoric aside, it was a war over access to the ballot.

  10

  THE VOTING WARS

  IT’S AN OPEN QUESTION IF REPUBLICANS outside of elite circles like REDMAP knew how effective their 2011 gerrymander would be—locking up state legislatures and House majorities for every election cycle this decade. But party leaders knew measures like tougher photo ID requirements to get a ballot at precincts would cut into Democratic turnout. Royal Masset, the Texas Republican Party political director, told the Houston Chronicle in 2007 that stricter ID laws could “add 3 percent to the Republican vote.”106

  A 2014 study by the congressional nonpartisan Government Accountability Office on tougher voter ID laws in Kansas and Tennessee found that Masset was not far off. Those laws reduced turnout in Kansas by 1.9 percent and in Tennessee 2.2 percent, the GAO said.107 A May 2017 study by Demos, a think tank headed by former Connecticut secretary of state, Miles Rapoport, a Democrat, found that stricter ID laws in Wisconsin, Virginia, and Mississippi caused turnout to drop by an average of 1.7 percent statewide. However, “turnout in counties with a high black population” was 2.8 percent lower.108

  Other research parses the impact of strict voter ID laws on non-whites even further. Three academics analyzing 2006–2014 data from the Cooperative Congressional Election Study, which sampled over a third of a million voters, found starker numbers. Compared to less restrictive states, stricter ID states—such as Texas, Florida, Arizona—saw November black turnout fall by 2.1 percent, Asian turnout fall by 5.0 percent, and Latino turnout fall by 8.3 percent. The drop-off was even larger in primary elections. “By instituting strict voter ID laws, states can alter the electorate and shift outcomes toward those on the right,” coauthors Zoltan L. Hajnal of the University of California San Diego, Nazita Lajevardi of Michigan State University, and Lindsay Neilson of Bucknell University wrote for the Washington Post in February 2017.109

  What’s happened to the electoral landscape for the past decade has been nothing less than an ongoing war of attrition. The pendulum first swings to the right after red states pass laws to make it harder for Democratic voting blocs to participate. That’s been followed by a push back in court by civil rights groups seeking to restore procedural and voting options, where some of the partisan advantages favoring Republicans are undone. In states where voting wars have been most intense, voters, poll workers, and election officials have been left confused by last-minute court rulings and administrative directives. That’s not an accident. Complicating the process also discourages participation, and lower-turnout elections favor the GOP’s base. This dynamic is not just seen in presidential swing states. States that could put the House in play—or should be a swing state like Georgia—have watched Republicans postpone what should be their relegation to history books—if demography was destiny.

  More than one voting rights attorney has referred to the teens as a lost decade. What followed 2010’s electoral GOP victories and redistricting was a pattern that has been repeated in each two-year cycle since. S
oon after new legislatures convene—typically January in odd-numbered years—numerous red states saw dozens of bills introduced to make voting more onerous for those states’ Democrats. Republicans almost never propose anything that affects voting by mail—absentee ballots—which their wealthier suburban base prefers. It is almost all aimed at polling places and precinct-based voting, which many urban voters prefer and where first-time voters are required to cast their ballot.

  Some of the most aggressive voter suppression bills were rushed through legislatures without hearings and were quickly signed into law. This started in 2011, when scores of bills were introduced in forty-one states.110 In nineteen states, twenty-five bills became law along with gubernatorial executive orders. These included tougher voter ID requirements, such as Texas barring state university photo IDs but allowing state handgun licenses. Wisconsin also created a photo ID requirement that excluded university IDs. Florida adopted big fines for voter registration drive errors, which stopped the League of Women Voters’ effort for the 2012 presidential election. Ohio ended early voting on the last Sunday before Election Day, when clergy led congregations in a “souls to the polls” push. States scheduled voter purges in Democratic strongholds shortly before the presidential election. Kansas added a proof of citizenship requirement to its state registration form and passed a tougher ID law. Both measures discouraged nonwhites and youths from voting in state elections. All were aimed at Democrats.

  Against this array of barriers came a rapid response by civil rights groups and Obama’s Department of Justice. Many laws were challenged in state and federal courts. The DOJ came in under the Voting Rights Act of 1965.111 That law, a high watermark of the Civil Rights Movement, requires the Justice Department to approve any change in voting laws or rules in states and counties with histories of racial discrimination in elections. It applied almost completely to the Old South, however, and not states such as Wisconsin, which have led Republican voter suppression efforts this decade. Nonetheless, under its so-called preclearance provision, the DOJ could veto anything it found would discriminate against minorities, compared to that jurisdiction’s current rules.