How Republicans Quietly Hijacked the Justice Department to Swing Elections

By Steven Rosenfeld, Ig Publishing. Posted April 15, 2008.

The following is an excerpted chapter by Steve Rosenfeld from the new book "Loser Take All," edited by Mark Crispin Miller (Ig Publishing, 2008).

Jim Crow has returned to American elections, only in the twenty-first century, instead of men in white robes or a barrel-chested sheriff menacingly patrolling voting precincts, we are more likely to see a lawyer carrying a folder filled with briefing papers and proposed legislation about "voter fraud" and other measures to supposedly protect the sanctity of the vote.

Since the 2004 election, activist lawyers with ties to the Republican Party and its presidential campaigns, Republican legislators, and even the Supreme Court -- in a largely unnoticed ruling in 2006 -- have been aggressively regulating most aspects of the voting process. Collectively, these efforts are undoing the gains of the civil rights era that brought voting rights to minorities and the poor, groups that tend to support Democrats.

In addition, the Department of Justice (DOJ), which for decades had fought to ensure that all eligible citizens could vote, now encourages states to take steps in the opposite direction. Political appointees who advocate for stringent requirements before ballots are cast and votes are counted have driven much of the DOJ's Voting Section's recent agenda. As a result, the Department has pushed states to purge voter lists, and to adopt newly restrictive voter ID and provisional ballot laws. In addition, during most of George W. Bush's tenure, the DOJ has stopped enforcing federal laws designed to aid registration, such as the requirement that state welfare offices offer public aid recipients the opportunity to register to vote.

The Department's political appointees have also pressured federal prosecutors to pursue "voter fraud" cases against the Bush administration's perceived opponents, such as ACORN (Association of Community Organizations for Reform Now), which conduct mass registration drives among populations that tend to vote Democratic. Two former federal prosecutors have said they believe that they lost their positions for refusing to pursue these cases.

The proponents of this renewed impetus to police voters comes from a powerful and well-connected wing of the Republican Party that believes steps are needed to protect elections from Democratic-leaning groups that are fabricating voter registrations en masse and impersonating voters. Royal Masset, the former political director of the Republican Party of Texas, said in 2007 that is an "article of religious faith that voter fraud is causing us to lose elections." While Masset himself didn't agree with that assertion, he did believe "that requiring photo IDs could cause enough of a drop off in legitimate Democratic voting to add 3 percent to the Republican vote."

While voter fraud and voter suppression have a long history in American politics, registration abuses and instances of people voting more than once are rare today, as federal officials convicted only twenty-four people of illegal voting between 2002 and 2005. Moreover, modern voter fraud, when it occurs, has involved partisans from both parties, although it is rarely on a scale that overturns elections. In contrast, new voter registration restrictions, such as requiring voters to show a government-issued photo ID, are of a scale that can affect election outcomes.

The Brennan Center for Justice at New York University Law School has found that 25% of adult African-Americans, 15% of adults earning below $35,000 annually, and 18% of seniors over sixty-five do not possess government-issued photo ID. While various studies -- such as a 2006 Election Assistance Commission report by Tova Andrea Wang and Job Serebrov, and a 2007 study by Lorraine Minnite of Barnard College -- have found modern claims of a voter fraud "crisis" to be unfounded, that has not stopped states from adopting remedies that impose burdens across their electorate and on voter registration organizations. "Across the country, voter identification laws have become a partisan mess," Loyola University Law Professor Richard Hasen said in an Oct. 24, 2006 Slate.com column, speaking of one such remedy. "Republican-dominated legislatures have been enacting voter identification laws in the name of preventing fraud, and Democrats have opposed such laws in the name of protecting potentially disenfranchised voters." Hasen was commenting on a little-noticed 2006 Supreme Court ruling, Purcell v. Gonzales, which upheld Arizona's new voter ID law. The court unanimously affirmed the state's 2004 law, writing that, "Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised."

Hasen said that while the ruling "seem[ed] reasonable enough" at first glance, it actually was deeply troubling, as the Court never investigated if there was evidence of widespread voter fraud, and never examined "how onerous are such [voter ID] laws." Instead, it adopted the Republican rhetoric on the issue "without any proof whatsoever." Hasen then quoted Harvard University History Professor Alexander Keyssar on the Court's rationale. "FEEL disenfranchised? Is that the same as 'being disenfranchised?' So if I might 'feel' disenfranchised, I have a right to make it harder for you to vote? What on Earth is going on here?"

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Steven Rosenfeld is a senior fellow at Alternet.org and co-author of "What Happened in Ohio: A Documentary Record of Theft and Fraud in the 2004 Election," with Bob Fitrakis and Harvey Wasserman (The New Press, 2006).

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