The Beginnings of a Myth: Voting Fraud

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The Republican War against your right to vote. Over the next few months the entire book will be here, new chapters posted every Sunday, for subscribers to read at no cost. If you want to get a physical book to mark up or share with others, just click on the picture above, visit your local bookstore, or check your favorite online seller.

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.