Inside Job

by Steven Rosenfeld

  Some constraints appear at this electoral starting line. The first, imposed by states and parties, are registration deadlines. These recur before every election, including possibly the upcoming one if you are a new voter. In 2016, only thirteen states and Washington, DC, had Election Day registration, which allowed any eligible person to show up, register, and vote.139 Two more states, Ohio and Maryland, allow people who come to early-voting centers to do all this. The rest have deadlines lasting from several days to a month before. Some states, like New York, have longer deadlines for party primaries. No one who had not registered six months prior could vote in its 2016’s presidential primary.

  Then there are requirements that have nothing to do with one’s legal eligibility to vote. This is where a simple process gets murky. The most obvious is requiring a specific state-issued photo ID to get a ballot. No state constitution says a plastic card is a requirement to be an eligible voter. But come Election Day, there it is in seventeen states, especially in red states.140 One exception had been Arkansas, where its Supreme Court in 2014 overturned a GOP-sponsored ID law. The Court said that was an unconstitutional “additional qualification” and compared it to the state’s segregation-era poll tax. In March 2017, however, the Republican Gov. Asa Hutchinson signed a bill reinstating the photo ID law. He claimed that new legislation was different and would withstand legal scrutiny.141

  But the constraint that is likely to assume a higher profile under Trump is the paper proof of citizenship to register. That’s because it surfaced in a state where his attorney general hails from and is the brainchild of the man Trump appointed in May 2017 to be vice-chair of his Advisory Commission on Election Integrity, Kansas Secretary of State, Kris Kobach. Vice President Mike Pence is the panel’s titular chairman. Kobach built his career by targeting the nonwhite populations that Republicans want to suppress in elections and now has a White House–sanctioned podium.142

  Paper proof of citizenship emerged a dozen years ago in Arizona. Kobach, then a lawyer and anti-immigrant activist in his late thirties, saw that adding it to the Republican catalog of voting “reforms” could help launch a political career. And it did. He helped draft a ballot measure in 2004, Arizona’s Proposition 200, which included requiring citizenship proof to register for state elections.143 Around this time, Kobach and his allies sued three states for not charging higher out-of-state tuition rates to the undocumented students at state colleges and universities (they lost in court). He later befriended Maricopa County’s anti-immigrant Sheriff Joe Arpaio and helped draft a state law letting police demand proof of immigration status to anyone pulled over in a traffic stop.144 Arizona voters passed Prop. 200 in 2004, starting a legal fight that most people thought ended in 2013 when the Supreme Court threw out most of the law.145 But Kobach—this decade’s Thor Hearne—doesn’t take no for an answer.

  During the race for Kansas secretary of state, his campaign website claimed that voter fraud had “burrowed into every corner of our country” and “illegal registration of alien voters has become pervasive” in his state.146 Weeks after taking office in 2011, Kobach convinced his legislature to adopt a tougher voter ID law and to require registrants to provide paper proof of citizenship.147 (They later gave him power to prosecute voter fraud, unlike any other secretary of state.) Kobach found like-minded Republicans in Alabama, Georgia, and Arizona. They did not need to be told the benefits of raising the bar to participate in state elections. In 2009, Georgia had passed its proof of citizenship law.148 In 2011, Alabama passed its law. Arizona Republicans, meanwhile, did not let the Supreme Court’s 2013 ruling stop them from instituting the proof in its elections.

  Two years later, this cadre launched a sly maneuver. The secretaries of state in Arizona and Kansas followed a suggestion in the majority opinion written by Justice Antonin Scalia that there might be another way to achieve their goal. The states sued an obscure federal agency, the US Election Assistance Commission (EAC), whose purview included the federal voter registration form.149 These Republicans did not just want stricter voter requirements and applications for their states. They wanted the federal agency to modify its registration form to help them impose the requirement—and give its imprimatur so other states might follow. It sounds like splitting hairs, but state and federal elections are different legal silos. Kobach and his allies were retreating to state’s rights terrain over how they ran their state elections. But they also sought a stamp of approval and help from a federal agency that oversees federal elections.150 In 2016, a Kobach ally who became EAC executive director, Kansan Brian Newby, unilaterally changed the instructions for the federal form to add citizenship demands by Alabama, Georgia, and Kansas. That was met with more lawsuits—where the Brennan Center, representing the League of Women Voters in these states, submitted filings saying 7 percent of voters do not readily have paper proof.151 Their filing said Kobach’s hurdles had blocked thousands of Kansans from voting.

  That 7 percent figure is worth repeating. That is what’s at stake in this arcane fight. Preempting another 7 percent of eligible voters who the GOP believes tilt to the left comes after redistricting’s built-in advantage of 6 or more percentage points. It is on top of stricter voter ID laws that add additional 2–3 percent of November election advantage—with a higher percentage advantage against non-white ethnicities. It is apart from the millions of ex-felons whose voting rights have not been restored. These are all ways that the GOP cumulatively targets the opposition. Many Democrats do not realize how these factors add up. The proof of citizenship fight hasn’t gone away because the stakes are huge if the GOP can find a way to nullify signing one’s name as a legal oath to register to vote.

  In September 2016, a federal court blocked Newby’s action. In early 2017, a court told the EAC to assess whether Newby had the authority to do what he did.152 That means this fight is not over. There’s more evidence of that conclusion back in Kansas. The ACLU has sued Kobach for a new program called Birth Link, which seeks to automate the proof of citizenship process by comparing voter applications to state birth records. That discriminates against otherwise eligible voters born outside Kansas, one more example of his nativism.153

  Like Trump, Kobach has said millions of noncitizens voted in 2016, but he can’t offer any proof—as there is none.154 But in the GOP’s prejudice-filled world of voting, we have seen facts don’t matter—even if research repeatedly proves it. In May 2017, the Brennan Center released a report to rebut Trump’s claims of immigrants illegally voting. It looked in forty-two jurisdictions in twelve states with the country’s largest noncitizen populations. Out of 23.5 million votes cast in those jurisdictions in 2016, election offices could only cite thirty instances of “suspected noncitizen voting,” noting that figure was “0.0001 percent of the votes cast.”155

  “In California, Virginia, and New Hampshire—the states where Trump claimed the problem of noncitizen voting was especially acute—no [election] official we spoke with identified any incidents of noncitizen voting in 2016,” the Center said. But during the 2016 campaign and afterward, Kobach stood by Trump’s big lie. You can be sure the proof of citizenship charade will resurface as he cochairs the White House’s “election integrity” commission. While the panel’s work is likely to be ignored like past presidential panels, Kobach has continued to promote outright falsehoods as partisan gospel.

  Days after Trump named Kobach to his commission, The New York Times reported that he “declared victory in the fraud wars” by claiming he had unearthed 125 non-citizens out of 1.8 million registered voters in Kansas.156 That’s 0.007 percent of its voters. Many of the noncitizens never voted, the Times said, but reported their mistake to local officials. “Most of Mr. Kobach’s nine fraud convictions involve people who voted in two states,” it said. “Neither a citizenship requirement nor an ID would have prevented those offenses.”

  But Kobach did accomplish partisan goals. When a federal court struck down some of his restrictions in 2016, it said these laws “denie
d more than 18,000 Kansans their constitutional right to cast ballots,” according to the Times. “Whenever I hear Kris Kobach use the words ‘voter fraud,’ what that means in English for regular folks is voter suppression,” Rep. Jim Ward, Kansas House Minority Leader, told the newspaper. “Most secretaries of state see their job to be a fair arbiter of elections. Kris has believed that the secretary of state is a partisan tool to affect the results of elections.”

  ANOTHER HIJACKED STATE: GEORGIA

  IN THE 2016 CYCLE, THERE WERE other examples of Republican secretaries of state targeting the registration process to suppress votes. Georgia’s Republicans showcased bad behavior in 2016—just as it did in the 2014–15 cycle. Georgia is another state whose complexion would be purple were it not for aggressive efforts by Republicans to preempt voters and stymie voting to keep its rule red. This pattern can be seen locally and at the highest reaches of state government.

  One eyebrow-raising local example came in 2015, when white Republicans in rural Hancock County, who are a majority on its county board of elections, sent sheriff deputies knocking on the front doors of more than 180 black voters in the town of Sparta. They were not concerned about real crime; they were questioning voter registrations.157 Their goal in dogging one-fifth of the town’s voters was to help a white mayoral candidate, a lawsuit that followed said. The county attorney, a Republican state legislator, defended the police action by alleging sloppy voter rolls. This was intimidation by whites to keep blacks from voting.

  While Sparta was a local drama, a fight with statewide consequences involving registrations broke out that same year between Georgia’s Republican Secretary of State, Brian Kemp, and its House Minority Leader, Democrat Stacey Abrams. Seen from afar, it looked like Kemp was modernizing the process by instituting online voter registration that year. But Abrams was leading an effort called the New Georgia Project that was running traditional voter drives, where canvassers went door-to-door and registrants filled out paper forms. In October 2014, it emerged that more than forty-one thousand of the eighty-seven thousand forms filed by the Project were not going to be processed by Election Day.158

  This disclosure was not accompanied by the usual gripe from local officials about voter drives—that activists dump mountains of paper on their desks at the last minute. Instead, Kemp announced he was launching a major voter fraud investigation as one of his state’s biggest drives in years was cresting. That accusation and the bureaucratic stonewalling that ensued was completely disingenuous. His investigation, completed months after Election Day, found problems with twenty-five of the eighty-seven thousand voter forms submitted—0.03 percent. But there’s far more that Kemp did to block voters in the 2015–2016 cycle.

  Remember the data fields that comprise what information is required to register—one’s name, address, birth date, and driver’s license or Social Security number? Kemp deliberately politicized a process that is similar to what is used in many states. When people do not register online, local election offices end up typing the information from paper forms into computers and the statewide voter file. Beyond illegible handwriting and typos that occur—and cause some people to not be registered—local officials also do electronic checks to verify the information. States validate a would-be voter’s identity by pinging their driver’s license database and the federal Social Security database using the last four digits of an applicant’s Social Security number. Some also ping prison records to screen for felons. Under Kemp, any unconfirmed match rejected the registrants.

  Where this becomes insidious is every one of those databases has had known accuracy problems or shortcomings that disqualify eligible voters. In 2009, the Social Security Administration (SSA) Inspector General’s office assessed how reliable its voter verification was. Compared to “other [Social Security number-based verification] programs used by the states and employers … (the voter registration) no-match rate was two-to-five times higher,” rejecting an additional 16 percent of registrants, it found. Why? That bigger gap was because other SSA programs used the full nine-digit Social Security number, while the voter registration program only used the last four digits. Less precise matching yields more errors.159

  In 2005, Congress’s GAO issued a report finding state drivers license databases confuse names, including full names, names with or without middle initials, aliases, etc. “Even a 1 percent error rate on a match validating names, driver license numbers, etc., could generate tens of thousands of bad matches,” the nonpartisan congressional analysts reported.160

  The Atlanta-Journal Constitution noted on how this process unfolded in their state in late 2014. “If everything goes right, a match comes back and the voter’s name is sent to the Secretary of State’s Office. But it sometimes does not go right,” they wrote.161 They cited the problems with Social Security and drivers’ license data, and noted why state prison records also were unreliable. “County officials must also ping the state Department of Corrections database, which may lag by up to several months in its information,” the paper wrote. “The Social Security Administration database only comes back as a ‘yes’ or ‘no’ match, giving county officials no help in determining what further information may need to be provided by the applicant. A hyphenated last name can cause hiccups with the state’s identification database, as can unintentional data entry errors by county clerks, said former North Carolina [state] election director Gary Bartlett, who submitted an affidavit on behalf of the voter groups [who sued over the botched processing of registrations].”162

  In other words, Kemp did not just masquerade behind the badge of fighting nonexistent voter fraud to thwart a registration drive led by a powerful elected Democrat. He also was winnowing voter rolls to impact the finish line—who can vote on Election Day. And there’s more. Between October 2012 and November 2014, he purged more than 370,000 inactive voters, which exceeded the number of newly registered voters.163 But at the starting line, voter registration, he was knowingly using a shoddy verification process to disqualify or hold registrants in limbo. Using porous data and imprecise analytics produces a politically expedient result: false positives. A lawsuit over Kemp’s matching that was settled in early 2017 found that of the nearly thirty-five thousand registrants whose registrations he canceled between July 2013 and July 15, 2016, 64 percent were black, 8 percent were Latino, 5 percent were Asian, and 14 percent were white.164 Meanwhile, of those forty-one thousand registrants that Kemp kept from voting in 2014, eighteen thousand were approved after the election in which they registered to vote. This is how nuanced and targeted voter suppression works.

  Kemp’s tactics, especially using error-prone data mining, are not unique. One of its biggest proponents is Kobach, who, as Kansas secretary of state, oversees the Interstate Voter Registration Crosscheck Program. That project was created in 2005 by state election directors with the goal of identifying voters registered in more than one state and instances of illegal double voting. It does so by matching first and last names, birth dates, and state turnout data.165 It was used by twenty-five states in 2016. You would be correct if you concluded that it surfaces hardly any illegal activity—single-digit instances from states each with tens of millions of voters. But its imprecise methodology generates hundreds of thousands of false positives.

  In 2015, Crosscheck helped Kemp identify some 540,000 Georgia voters166 who were in danger of being purged before the 2016 election. That’s one-eighth of the Georgians who voted for president that fall. This points to another fight in the lead up to the election—mass purges by GOP secretaries of state of tens of thousands of infrequent but legally registered voters in Democratic strongholds. In early 2017, Georgia and more than a dozen red states filed a brief at the Supreme Court urging it to hear a case in its fall term over Ohio’s purge of 144,000 infrequent voters in blue epicenters before the 2016 election. These red states sided with Ohio’s partisan mass purge.167 The Supreme Court will hear the case, where Ohio acted after exploiting another ambiguity in federal voting la
ws.

  Meanwhile, the battle between Georgia Secretary of State Brian Kemp and House Minority Leader Stacey Abrams is not over. Both are running for governor in 2018 (as is Kobach in Kansas). But the tactic that Kemp and Kobach engaged in—targeting and freezing out new voters, and partisan purges of infrequent voters—is the next stage in the process where the GOP has an indisputable record of cynically exploiting a simple bookkeeping process.

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  THE FINISH LINE

  THE DEEPER WE DELVE INTO DETAILS, the more we see the GOP hijack technicalities. One of the most persistent is selectively purging voters, which is when registered voters are removed from voter rolls under the guise of keeping the lists current. When these voters show up to vote in states without Election Day registration, they are told they can reregister for the next election—but they can not vote that day. Many protest and poll workers end up giving them provisional ballots. But those ballots are usually disqualified and don’t count.

  There are many legitimate reasons to keep rolls up-to-date by removing names, especially in our mobile society. List maintenance, as it’s called, streamlines the process at the polls, saving counties and campaigns money on printing ballots and mailings, and helps with planning for turnout at precincts. But what should be routine bookkeeping can also be darkly politicized.

  There are other recent examples where Republicans combined their propagandistic voter fraud meme and sought to use, or did use, sloppy analytics to target legal voters for mass removals. An especially eyebrow-raising example came from Florida in 2014, when GOP Secretary of State Ken Detzner scrapped a statewide purge after county officials openly rejected his attempt to impose mistake-ridden purge lists on them.168