The Beginnings of a Myth: Voting Fraud

Sunday book excerpt: The Hidden History of the War on Voting

Every Sunday I share with you a chapter or two from one of my books. This is a serialization of the entire book, done a chapter or two every Sunday for the next few months, of The Hidden History of the War on Voting.

The Beginnings of a Myth: Voting Fraud 

For over a century, most states used biometrics to verify voter identity. Signatures done in front of a witness are nearly impossible to fake (unlike IDs, which can be easily faked). Polling place workers would compare the original registration signature with the signature of the person signing in to vote, and if they didn’t match, the worker would disqualify the voter.

When the Motor Voter Act was passed in 1993, not a single state required proof of citizenship to vote, and there was no national problem of voter fraud. The threat of a few years in jail is more than enough to discourage even the most ardent partisan from trying to double-vote or fraudulently vote. 

If somebody wanted to travel internationally, he or she got a passport; the purpose of a driver’s license prior to 2006 was merely to make sure that incompetent people weren’t moving 3,000 pounds of steel at 60 miles per hour across the nation’s roads, and to be able to track down and hold to account people who abused the privilege. 

With passage of Motor Voter in 1993, though, the “Illegals will now be registered to vote!” screech immediately came bubbling up from the throats of Republican consultants and politicians. 

The Washington Post reflected the newspaper’s position in a 1995 editorial: 

A group of Republican governors that includes California’s Pete Wilson, who has already sued to have the law overturned, objects . . . that it [the Motor Voter law] is also a ploy by Democrats to strengthen the party’s electoral chances, since many of those whom easier registration might add to the voter pool are groups inclined to vote against the GOP; and . . . that the law could facilitate voter fraud.

The editors of the Post added dryly, “As for fraud, registration at motor vehicle offices and by mail already works fine in many parts of the country, including in the District [of Columbia]. . . . The governors ought to reconsider.”117 

But the torch had been lit, and a quiet movement began within the GOP to sound the alarm, fueled by Motor Voter, that there could be millions upon millions of noncitizens who were or soon would be registered voters. And if those millions of “illegal aliens”—a perennial Republican boogeyman—were to turn out at the polls, particularly those brown people from south of the border, they’d flip the nation into the hands of the Democrats. 

Voting Fraud: From Myth to Dogma 

Bush and Cheney came into the White House shaken and widely viewed by the American electorate as having marginal legitimacy; they certainly couldn’t even claim a mandate to govern, after having lost the popular vote. 

Karl Rove helped organize publicity about the “crisis” of “illegal voting” as a possible explanation for Bush’s losing the popular vote by a half-million, and Attorney General John Ashcroft launched the 2002 Ballot Access and Voting Integrity Initiative in the Justice Department, requiring all 100 US federal prosecutors to “coordinate with local officials” to combat the scourge of illegal voting and bring to justice the millions of presumed malefactors who made the election so close.118 

Over the next three years, at a cost of millions of dollars, and after examining tens of millions of voters and more than a billion votes, Ashcroft was able to document and successfully prosecute only 24 people nationwide for voting illegally—and none of them had committed in-person voter fraud of the kind that would be stopped by voter ID. (Most were people double voting, and the majority of those were wealthy white Republicans who had homes in two states and voted in person in one and mailed in a ballot to the other state; such folks got a fine, typically around $2,500. There were also a few felons who voted and didn’t know it was illegal.) 

Karl Rove put on the pressure; they had to find a few people (ideally black or brown people with fake IDs) who could be made into national examples of the evils of in-person voter fraud, if they were ever to convince Americans that stronger ID laws were necessary to stop noncitizens from voting. 

So the Bush White House demanded that all 100 of the nation’s federal prosecutors—all Bush appointees—move investigating voter fraud to the front of their agendas, sidelining other federal crimes. Eight of the prosecutors objected and were summarily fired. 

In Washington state, prosecutor John McKay was fired because he refused to intervene in the 2004 election with fraud charges when Republican Dino Rossi lost that state’s governor’s race by a mere 129 votes. McKay told the Seattle Times that after a thorough investigation by his office, “there was no evidence, and I am not going to drag innocent people in front of a grand jury.”119 That was a career ender.

In New Mexico, prosecutor David Iglesias resisted GOP pressure to create a show trial around two teenage boys who somehow got onto the voting rolls even though they were both under 18 and neither had voted. In a 2007 op-ed in the New York Times titled “Why I Was Fired,” he wrote, “What the critics, who don’t have any experience as prosecutors, have asserted is reprehensible—namely that I should have proceeded without having proof beyond a reasonable doubt. The public has a right to believe that prosecution decisions are made on legal, not political, grounds.”120 

The firings were a major scandal in the Bush administration, although time has faded the public recollection of them. 

But the GOP was just getting started. By the end of 2004, 12 states had passed laws requiring ID to vote. 

Coincidentally, a comprehensive study by the Eagleton Institute of Politics at Rutgers University found that, overall, requiring ID to register to vote reduced the registered voting population in the states that did so by around 10 percent. In the 2004 election, “Hispanic voters were 10 percent less likely to vote in non-photo-identification states compared to states where voters only had to give their name.” Among African Americans, they found that the “probability of voting was 5.7 percent lower for Black respondents in states that required non-photo identification.”121 Requiring photo ID raised it into the 10 percent region. 

Even the vote of Asian Americans, another group more inclined to vote Democratic than Republican, was suppressed by around 8.5 percent by the ID requirement.122 

Again, none of these nonvoters were ever found to be noncitizens; it’s just that among these populations there were larger numbers of people who lived in cities where they didn’t need a driver’s license because they didn’t own a car, or were too poor to own a car, and thus lacked the picture ID required by the new state laws. Among white people, the effect was to suppress the vote of college students, the working poor, and retired people. 

The story of how voter ID laws suppress minority and poor people’s votes hadn’t yet hit the news in a big way, but it was electrifying Republican politicians and consultants. And their billionaire donors.

The American Legislative Exchange Council (ALEC) is a nationwide nonprofit that brings together Republican state legislators and lobbyists to consider mostly lobbyist-written legislation for the Republican state senators and representatives to take back home and introduce. (Democrat Mark Pocan, when he was a Wisconsin state representative, registered for an ALEC meeting in that state and attended it. He called in to my radio show as they were throwing him out of the place, once they’d figured out he wasn’t a Republican. “It was pretty bizarre,” he told me.) Via the largely Koch-funded ALEC, the GOP distributed what ALEC refers to as “model legislation” (in fact, they’re prewritten laws that are often submitted by legislators verbatim) that would make it harder for minorities to vote, including requiring ID—and proof of citizenship—to register to vote, along with repeated requirements to show ID at the time of voting. Willing Republican state legislators added their own twists to the model legislation offered by ALEC by, for example, increasing penalties for voter fraud. 

As reporter Ari Berman wrote for Rolling Stone in 2011, 

In Texas, under emergency legislation passed by the GOP-dominated legislature and signed by Gov. Rick Perry, a concealed-weapon permit is considered an acceptable ID but a student ID is not. Republicans in Wisconsin, meanwhile, mandated that students can only vote if their IDs include a current address, birth date, signature and two-year expiration date—requirements that no college or university ID in the state currently meets. As a result, 242,000 students in Wisconsin may lack the documentation required to vote next year.123 

State by state, Republicans were making it harder for young people, poor people, low-income working people, minorities, and retired people to vote. But the issue still hadn’t caught on nationally. 

Then came Kris Kobach. 

Kris Kobach: The Voting Fraud Myth Becomes a Mission

Kris Kobach’s national debut was as a speaker on the first day of the 2004 Republican National Convention in New York City. I attended that convention and broadcast my show from there, sitting next to Sean Hannity, interviewing and meeting many of the GOP luminaries. And most of what they wanted to talk about was the same as Kobach’s speech: the danger of Mexicans sneaking into the United States and voting (along with robbing, raping, and drug running). 

Ironically, they didn’t seem so concerned with Mexicans taking American jobs. When I repeatedly brought up with Republicans how Ronald Reagan had pretty much stopped prosecuting employers after his 1986 amnesty for five million “illegals,” and how entire industries that used to have an all-American labor force and were heavily unionized, like construction and meat packing, were now mostly just employing people who were in the country illegally, they’d just shrug their shoulders. One said, “Well, it did help break the unions” or words to that effect. 

Kobach, though, was soon to turn his warnings about brown-skinned people from south of the border into a lucrative legal and consulting business, helping cities and townships draft anti-illegal-immigrant laws. In most cases, the laws were quickly overturned in the courts, and the cities ended up with huge legal bills, both for Kobach’s services and for defending themselves after they promulgated his laws. 

ProPublica did an investigation into it all, published in 2018 with the title “Kris Kobach’s Lucrative Trail of Courtroom Defeats.” It reads, in part, 

The towns—some with budgets in the single-digit-millions—ran up hefty legal costs after hiring him to defend similar ordinances [to one he helped pass in Missouri]. Farmers Branch, Texas, wound up owing $7 million in legal bills. Hazleton, Penn., took on debt to pay $1.4 million and eventually had to file for a state bailout. In Fremont, Neb., the city raised property taxes to pay for Kobach’s services. None of the towns are currently enforcing the laws he helped craft.124

University of Missouri law professor Larry Dessem told ProPublica that Kobach reminded him of the character Harold Hill in The Music Man. “Got a problem here in River City,” he said, “and we can solve it if you buy the band instruments from me. He is selling something that goes well beyond legal services.”125

Kobach has turned stopping Mexicans from voting (a nonexistent problem in the United States) into a mini-industry, at times arguing that there were more than 18,000 “illegals” registered to vote and/or voting in Kansas (when he became secretary of state, he was unable to find even one of them), and at other times echoing Donald Trump’s assertion that the number nationwide was about the same as the margin of Trump’s popular-vote loss to Clinton—in the neighborhood of three million. 

In fact, more people are struck by lightning in any given month than try to vote without being a citizen in any given year; numbers nationwide from credible sources place it between a few dozen and perhaps a hundred nationwide in any given national election. A study published in the journal Election Studies in 2014 suggests that the number may have been far fewer than even 100 people—nationwide—and almost all voted in error or by mistake, or didn’t understand voting law.126 

And double voting is just as rare.

There is no credible evidence of the “busloads” of Hispanic or black people going from polling place to polling place to repeatedly vote, cited by Donald Trump, by former Maine governor Paul LePage, and repeatedly on Fox News and other sources, even existing anywhere in the United States at any time in our lifetimes. 

When the ACLU took Kobach to court for trying to enforce a punishing strict-photo-ID law in Kansas that he’d helped get passed, the judge essentially ridiculed his claims of noncitizen voters after Kobach’s best witnesses (including Hans von Spakovsky of the Heritage Foundation) not only were unable to document their own claims but repeatedly had their previous claims called out accurately as lies. Kobach lost the case. 

But Kobach still pushes for large voter purges. 

Interstate Crosscheck and the Election Integrity Scam

The Republicans have successfully pushed their monstrous lie of double voting and noncitizen voting because of the ways that states handle voter registration rolls. Ideally, a state’s voter registration rolls should carry only the names of people who are both currently legal residents of the state and qualified to vote. The reality is much different. 

For example, I grew up in Michigan and voted in that state until I was 27 years old, in 1978. That year, we moved to New Hampshire, where I registered to vote—and never told Michigan that I’d left. Five years later, we moved to Georgia, where I registered to vote and did so for more than a decade—again, not telling either Michigan or New Hampshire that I’d moved out of state. In 1997, we moved to Vermont, where I again registered to vote. In 2005, we moved to Oregon, and the same story. In 2010, we moved to Washington, DC, then back to Oregon in late 2017. 

Most states remove a person from the rolls only if the person doesn’t vote for at least a few presidential elections in a row or if the person has notified the state that he or she has moved (a rarity), and therefore only occasionally update their voter rolls. Thus, odds are that my name would have been found on the rolls of two or maybe even three or four states over the years, registered to vote in every one of them. 

I never voted in two states at once. And outside of the dozen or so people a year who do so nationwide, mostly in error, neither does anybody else. 

But it’s easy enough for a partisan like Kobach to point to duplicate voter registrations in multiple states as “proof!!” of double voting. He and Trump (and most of the right-wing media) constantly cite figures of people registered in multiple states—something that is not a crime in any state—as if those people were in fact double voting, which is a crime. 

Kobach helped put together and promote an elaborate scheme called Interstate Crosscheck to catch these “double voters.” By comparing names of registered voters in one state against rolls in multiple other states, he was able to identify millions of people who, like me, were still registered to vote in more than one state. Again, no crime and no double voting—but a heck of a sound bite for Fox News. 

Kobach compiled huge lists of “duplicate” voters for one red state after another, with hundreds of thousands of names on each list. Republican secretaries of state enthusiastically purged the “duplicate” names from their rolls. As Republican strategist Paul Weyrich admitted in 1980, “Our leverage in the elections quite candidly goes up as the voting populace goes down.”127

But there was an added benefit for Kobach and the GOP: many (and perhaps most) of the people “caught” by Crosscheck weren’t people like me who move a lot. They were, instead, people who had identical or similar names. 

White people came to America from wildly diverse places speaking dozens of different languages, from northern Russia to southern Italy, from the British Isles to Serbia to deep within India. They brought with them a huge diversity of names. 

On the other hand, Asians, Hispanics, and African Americans tend to have much smaller name pools. African American slaves were often named after their owners, and because most of the slave states were settled by a relatively nondiverse population of white people, their name pool is smaller than that of whites. Ditto for Hispanics, who acquired their names from the Spanish conquerors, representing a single-country name pool. And Asians draw from a relatively small pool of names to begin with. 

Thus, when running Crosscheck, the “duplicate” names—particularly within a state—tend to disproportionately belong to people of color, which accounts for why voting purges in places like Georgia leading up to 2018 bit so hard into the pool of registered African American and Hispanic voters. 

Because of these problems, select states have stopped using Kobach’s program, but others are still purging away and will continue to as long as there is no actual right to vote codified in either our law or our Constitution. 

Kobach took his system with him to the White House, where Donald Trump appointed him in May 2017 with much fanfare to his Presidential Advisory Commission on Election Integrity—charged with proving that double voting and in-person voter fraud were rampant nationwide. 

Unable to find any proof of these charges anywhere in the United States, though, just as had happened a bit more than a decade earlier when George W. Bush was firing federal prosecutors for not being able to locate these malefactors, the commission dissolved, by executive order, on January 3, 2018, with almost no mention in the media and nary a tweet from Trump,