jurisprudence: The law, lawyers, and the court.
Posted Friday, May 18, 2007, at 1:41 PM ET
Imagine the National Rifle Association's Web site suddenly disappeared, along with all the data and reports the group had ever posted on gun issues. Imagine Planned Parenthood inexplicably closed its doors one day, without comment from its former leaders. The scenarios are unthinkable, given how established these organizations have become. But even if something did happen to the NRA or Planned Parenthood, no doubt other gun or abortion groups would quickly fill the vacuum and push the ideas they'd pushed for years.
Not so for the American Center for Voting Rights, a group that has literally just disappeared as an organization, and for which it seems no replacement group will rise up. With no notice and little comment, ACVR—the only prominent nongovernmental organization claiming that voter fraud is a major problem, a problem warranting strict rules such as voter-ID laws—simply stopped appearing at government panels and conferences. Its Web domain name has suddenly expired, its reports are all gone (except where they have been preserved by its opponents), and its general counsel, Mark "Thor" Hearne, has cleansed his résumé of affiliation with the group. Hearne won't speak to the press about ACVR's demise. No other group has taken up the "voter fraud" mantra.
The death of ACVR says a lot about the Republican strategy of raising voter fraud as a crisis in American elections. Presidential adviser Karl Rove and his allies, who have been ghostbusting illusory dead and fictional voters since the contested 2000 election, apparently mounted a two-pronged attack. One part of that attack, at the heart of the current Justice Department scandals, involved getting the DoJ and various U.S. attorneys in battleground states to vigorously prosecute cases of voter fraud. That prong has failed. After exhaustive effort, the Department of Justice discovered virtually no polling-place voter fraud, and its efforts to fire the U.S. attorneys in battleground states who did not push the voter-fraud line enough has backfired. Even if Attorney General Gonzales declines to resign his position, his reputation has been irreparably damaged.
But the second prong of this attack may have proven more successful. This involved using ACVR to give "think tank" academic cachet to the unproven idea that voter fraud is a major problem in elections. That cachet would be used to support the passage of onerous voter-identification laws that depress turnout among the poor, minorities, and the elderly—groups more likely to vote Democratic. Where the Bush administration may have failed to nail illegal voters, the effort to suppress minority voting has borne more fruit, as more states pass these laws, and courts begin to uphold them in the name of beating back waves of largely imaginary voter fraud.
Perhaps even with the demise of ACVR, the hard work—of giving credibility to a nonproblem—is done. The short organizational history of ACVR, chronicled indefatigably by Brad Friedman of the Brad Blog, shows that the group was founded just days before its representatives testified before a congressional committee hearing on election-administration issues chaired by then-Rep. (and now federal inmate) Bob Ney. The group was headed by Hearne, national election counsel to Bush-Cheney '04, and staffed with other Republican operatives, including Jim Dyke, a former RNC communications director.
Consisting of little more than a post-office box and some staffers who wrote reports and gave helpful quotes about the pervasive problems of voter fraud to the press, the group identified Democratic cities as hot spots for voter fraud, then pushed the line that "election integrity" required making it harder for people to vote. The group issued reports (PDF) on areas in the country of special concern, areas that coincidentally tended to be presidential battleground states. In many of these places, it now appears the White House was pressuring U.S. attorneys to bring more voter-fraud prosecutions.
ACVR's method of argument followed a familiar line, first set out by Wall Street Journal columnist John Fund in his book, Stealing Elections. First, ACVR argued extensively by anecdote, pointing to instances of illegal conduct, such as someone, somewhere registering Mary Poppins to vote. Anecdote would then be coupled with statistics showing problems with voter rolls not being purged to remove voters who had died or moved, leaving open the potential for fraudulent voting at the polls. Finally, the group would claim that the amount of such voter fraud is hard to quantify, because it is after all illegal conduct, hidden from the public. Given this great potential for mischief, and without evidence of actual mischief, allegedly reasonable initiatives such as purging voter rolls and requiring ID seemed the natural solution.
At least in hindsight, the ACVR line of argument is easily deconstructed. First, arguing by anecdote is dangerous business. A new report (PDF) by Lorraine Minnite of Columbia University looks at these anecdotes and shows them to be, for the most part, wholly spurious. Almost always the allegations were followed by charges being dropped or allegations being unproven (and sometimes raised for apparently political purposes). Sure, one can find a rare case of someone voting in two jurisdictions, but nothing extensive or systematic has been unearthed or documented.
Second, there's no question that there's a fair amount of registration fraud in this country, an artifact of the ability in many states to pay bounty hunters by the head for each new registrant. Some unscrupulous people being paid $3 to $5 for each card turned in will falsify registration information, registering pets or dead people or comic-book characters—none of whom will show up to vote on Election Day (with or without an ID). (I, for one, would turn the whole business of voter registration over to the government and couple a universal voter-registration program with a national voter-ID card paid for by the government—but that's another story.)
Third, and perhaps most importantly, the idea of massive polling-place fraud (through the use of inflated voter rolls) is inherently incredible. Suppose I want to swing the Missouri election for my preferred presidential candidate. I would have to figure out who the fake, dead, or missing people on the registration rolls are, and then pay a lot of other individuals to go to the polling place and claim to be Mary Poppins or Old Dead Bob, without any return guarantee—thanks to the secret ballot—that any of them will cast a vote for my preferred candidate. Those who do show up at the polls run the risk of being detected ("You're not my neighbor Bob who passed away last year!") and charged with a felony. And for what—$10? As someone who's thought about this a lot, if I really wanted to buy votes in an enforceable and safe way, I'd find eligible voters who would allow me to watch as they cast their absentee ballots for the candidate of my choice. Then, I would pay them. (Notably, ACVR and supporters of voter-ID laws have generally supported exemptions from ID requirements for voters who use absentee ballots.) Or, I might find an election official to change the votes. Polling-place fraud, in short, makes no sense.
Finally, on the issue of lack of detection: State and local officials have uncovered a fair amount of the absentee-ballot vote-buying I've just described, even though that behavior, too, is illegal and likely hidden from public view. The DoJ devoted unprecedented resources to ferreting out polling-place fraud over five years and appears to have found not a single prosecutable case across the country. The major bipartisan draft fraud report (PDF) (recently posted by Slate and suppressed by the U.S. Election Assistance Commission [TimesSelect subscription required]) concluded that there is very little polling-place fraud in the United States. Of the many experts the commission consulted, the only dissenter from that position was a representative of the now-evaporated ACVR.
Perhaps it is not surprising that ACVR has collapsed as an organization. In what appears to be one of Hearne's last public appearances (where he identifies himself [PDF] as having served—note past tense—as counsel to ACVR) before the EAC in December of 2006, Hearne offered the usual arguments. In support of his position that voter-ID laws did not unconstitutionally suppress the votes of poor and minority voters, Hearne cited the decision of the DoJ to approve the pre-clearance of Georgia's voter-ID law, and a law review article supporting such laws, written under the pseudonym Publius. Hearne didn't reveal that the decision on Georgia was made by political appointees of the DoJ over the strong objections of career attorneys there who believed the law was indeed discriminatory. Nor did he explain that (as I discovered and blogged about a few years earlier) Publius was none other than Hans von Spakovsky, then serving as one of the political DoJ officials who approved the Georgia voter-ID law. (President Bush later gave von Spakovsky a recess appointment to the Federal Election Commission.)
The arguments against vote fraud were built on a house of cards, a house that is collapsing as quickly as the U.S. attorney investigation moves forward.
So Hearne let the organization collapse, and in a bit of irony, a Washington lawyer who bought the ACVR domain name has set it to redirect to the Brennan Center's Truth About Fraud Web site, which debunks ACVR's claims of polling-place voter fraud. But despite the collapse of ACVR, the idea that there is massive polling-place voter fraud has, perhaps irrevocably, entered the public consciousness. It has infected even the Supreme Court's thinking about voter-ID laws. And it has provided intellectual cover for the continued partisan pursuit of voter-ID laws that may suppress minority votes. Just this week, Republican members of the Texas state Senate are trying to push through a voter-ID law over a threatened Democratic filibuster. Their political machinations have already required a Democratic state senator recovering from a liver transplant to show up to vote—and they almost passed the bill when another Democratic senator came down with the stomach flu.
Texas legislators should be ashamed. All of this effort to enact a law that would stop a nonexistent problem. If only there were a way to ensure that spurious claims of polling-place voter fraud could have disappeared with ACVR.