The Republican War on Voting

By Art Levine, The American Prospect. Posted April 4, 2008.

One week before the close of voter registration in Kentucky last fall, in an election that culminated with the victory of Democratic gubernatorial candidate Steve Beshear, Johanna Sharrard, a fresh-faced 26-year-old national organizer for the low-income advocacy group ACORN, gathered her canvassers in a run-down Louisville office and told them some good news: "We got 396 people yesterday -- that's really great!" Then she added what could have seemed a jarringly discordant note: "We know it's getting harder to reach people with the cards in this area. It's really important that you guys are not slipping up and turning to filling out your own applications or other fraudulent activity. Just yesterday we had to let another person go because she did not follow protocols." Sharrard continued sternly, "What's important is that we get 15,000 new voters. We're not out there to get 10,000 new voters and 5,000 false applications."

Indeed, the voter registration waged by ACORN (the Association of Community Organizations for Reform Now) in Kentucky was also an effort to test the group's new system for rooting out any fraud. The organization is readying itself for the challenges to voter participation that the poor and minorities -- and Democrats -- are sure to face in 2008.

Sharrard's cautionary tone was a response to the Republican Party's ongoing nationwide campaign to suppress the low-income minority vote by propagating the myth of voter fraud. Using various tactics -- including media smears, bogus lawsuits, restrictive new voting laws and policies, and flimsy prosecutions -- Republican operatives, election officials, and the GOP-controlled Justice Department have limited voting access and gone after voter-registration groups such as ACORN. Which should come as no surprise: In building support for initiatives raising the minimum wage and kindred ballot measures, ACORN has registered, in partnership with Project Vote, 1.6 million largely Democratic-leaning voters since 2004. All told, non-profit groups registered over three million new voters in 2004, about the same time that Republican and Justice Department efforts to publicize voter fraud and limit voting access became more widespread. And attacking ACORN has been a central element of a systematic GOP disenfranchisement agenda to undermine Democratic prospects before each Election Day.

Revelations that U.S. attorneys were fired for their failure to successfully prosecute voter fraud have revealed how fictitious the allegations of widespread fraud actually were -- but the allegations haven't gone away. They live on in all the vote-suppressing laws and regulations that will likely affect this year's election, in GOP rhetoric and, most recently, in the arguments presented by champions of Indiana's restrictive voter-identification law in a case currently before the U.S. Supreme Court.

Unfortunately, progressives have tended to pay more attention to Election Day dirty tricks and to electronic voting machines than to a more systemic threat: the Republican campaign to suppress the votes of low-income, young, and minority voters through restrictive legislation and rulings, all based on the mythic specter of voter fraud. Those relatively transient voters, drawn to the polls this year by the Obama and Clinton campaigns, could find themselves thwarted in November and thereafter by the GOP-driven regime of voting restrictions -- particularly if, as many observers believe, the Court upholds Indiana's restrictive law before it adjourns this June.

Voter fraud is actually less likely to occur than lightning striking a person, according to data compiled by New York University's Brennan Center for Justice. As Lorraine Minnite, a Columbia University professor, observed in the Project Vote report, The Politics of Voter Fraud, "The claim that voter fraud threatens the integrity of American elections is itself a fraud." In October 2002, then-Attorney General John Ashcroft launched an intensive "Ballot Access and Voting Integrity Initiative" that required all U.S. attorney offices to coordinate with local officials in combating voter fraud. Yet even after the Justice Department declared the war against voter fraud a "high priority," only 24 people were convicted of illegal voting in federal elections between 2002 and 2005 -- and nobody was even charged by Justice with impersonating another voter. (The Justice Department declined to answer questions about more recent fraud prosecutions.) And despite the anti-immigrant frenzy fueling photo-ID laws, only 14 noncitizens were convicted of illegally voting in federal elections from 2002 through 2005 -- mostly because of their ignorance of election law.

Unfortunately, the public hasn't heard just how nonexistent the voter fraud epidemic actually is. While progressives have successfully challenged some of the most restrictive laws in court, they're still playing catch-up when it comes to combating the glib sound bites of voter-fraud alarmists. Republicans and the Bush Justice Department have cloaked their schemes under such noble-sounding concepts as "ballot integrity." The GOP's vote-suppression playbook features everything from phony lawsuits to questionable investigations to authoritative-seeming reports, all with the aim of promoting restrictive laws. These tactics were first perfected in the hotly contested swing state of Missouri.

The roots of John Ashcroft's passion on this issue go back to the chaos of Election Day 2000 in St. Louis, when hundreds, if not thousands, of mostly inner-city voters were turned away from polling places because their names were not on voting rolls. The resulting last-minute court battle kept some polling places open for 45 minutes after their scheduled closing time of 7 P.M. Ashcroft, then the Republican U.S. Senate nominee, lost his race to the dead Democratic governor, Mel Carnahan, whose name stayed on the ballot weeks after he died in a plane crash. At an election-night party, an infuriated Republican Sen. Kit Bond pounded the podium and screamed, "This is an outrage!" -- and subsequently charged that Republican losses were due in part to dogs and dead people voting. As one local government official observed, "In St. Louis, 'dogs and dead people' is code for black people [voting fraudulently]."

That election night gave birth to the new right-wing voter-fraud movement, while Missouri became a proving ground for the vote-suppression campaigns that later spread to other key states. Missouri's then-Secretary of State Matt Blunt, now governor, launched a trumped-up investigation that concluded that more than 1,000 fraudulent ballots had been cast in an organized scheme. A Justice Department Civil Rights Division investigation, started before Ashcroft shifted the department's priorities, found no fraudulent ballots, however. Instead, it discovered that the St. Louis election board had improperly purged 50,000 voters from the rolls.

Nonetheless, the template for smear campaigns, groundless lawsuits, and politicized prosecutions used across the country had been set in Missouri. Key roles were played by many of the same GOP zealots who later made their mark on the national drive to fight voter fraud, among them St. Louis attorney Thor Hearne, the 2004 Bush-Cheney campaign election counsel who later launched the GOP front group, the American Center for Voting Rights (ACVR). And as early as 2002, the executive director of the Missouri Republican Party pioneered a new dirty trick: publicly "filing" with the Federal Election Commission a 26-page complaint against the state's leading registration group, known as Pro Vote, that charged it with secretly conspiring with Democrats in the Senate race -- but then failing to sign the document so the agency never considered it.

The goal of such complaints and allegations was to create a barrage of negative publicity about voter-registration groups and the voter-fraud menace that could pave the way for restrictive laws. In Missouri, the Republicans' cries for a new state photo-ID law began in 2002, before the GOP blitz in most other states. The legislature passed such a bill in early 2006, before it was struck down that September by a Missouri state court as unconstitutional.

The GOP in Missouri also turned to prosecutions and lawsuits, most either overblown or groundless. In November 2005, Bradley Schlozman, then the Justice Department's acting civil-rights chief, insisted on filing a lawsuit that accused Missouri's secretary of state, Robin Carnahan, a Democrat, of failing to purge supposedly ineligible voters under federal law. (U.S. Attorney Todd Graves was forced out in March 2006 for having balked at filing the suit.) A federal judge, who found that the Justice Department did not produce any evidence showing fraud justifying the purges, dismissed the lawsuit in April 2007. The department continues to appeal the ruling.

The fraud-obsessed Schlozman was then moved into Graves' old post without Senate confirmation, through a loophole in the Patriot Act. In an apparent effort to discredit both Democrats and ACORN, just five days before the tight Senate election in 2006 between incumbent Republican Jim Talent and Democrat Claire McCaskill, Schlozman announced, in violation of the department's own standards, the indictment of four former ACORN workers who had been fired by ACORN for filling out false voter-registration forms. The indictments were part of a broader effort to tilt the campaign against Democrats by bashing ACORN and limiting voter access. St. Louis' Republican election director, Scott Leiendecker, sent out a chilling letter shortly before the election to 5,000 mostly African-Americans registered by ACORN, asking them to verify to the election board that they were eligible to vote. Leiendecker backed off after he faced the threat of a voting-rights lawsuit and received a warning letter from Secretary of State Carnahan.

What began in Missouri soon went nationwide. Starting in 2003, the Justice Department's civil-rights division issued a flurry of advisory letters, rulings, and lawsuits under the guise of fighting fraud that appear designed to disenfranchise hundreds of thousands of voters. Federal and state courts have struck down some of the laws shaped by policies promoted by the Justice Department, such as strict database-matching laws limiting new voters in Washington state and Florida. Even so, Justice Department-backed secretive purging policies have targeted voter-registration applicants and current voters in several key states: In Ohio in 2006, 303,000 voters were purged in three major urban counties, while the Brennan Center reported that Pennsylvania's rigid database rules, later loosened, had excluded up to 30 percent of eligible registrants. Karl Rove aide Tim Griffin played a major role in state GOP voter "caging" operations (that is, challenging the eligibility of registered voters) in such states as Ohio and Florida. These schemes, Project Vote reports, challenged the right of 77,000 mostly minority voters to cast ballots between 2004 and 2006, under the pretext that non-forwardable letters sent by GOP activists to their addresses were returned as undelivered. Thor Hearne's now-vanished ACVR lobbied for strict voter-ID laws in nine states, according to McClatchy and other news organizations. Voter-ID laws in states such as Georgia, Arizona, and Indiana have, for now, been allowed to stand. All these campaigns have created a kind of GOP vote-suppression playbook that aims to limit voting rights in the states and attack registration groups such as ACORN. In most states where ACORN wages ballot-initiative and voter-registration campaigns, Republican lawyers, officials, and some prosecutors routinely file dubious lawsuits and complaints to generate bad press for the voter-registration drives. The lawsuits seldom if ever succeed, but the bad press they engender creates a climate to pass restrictive voting laws.

In New Mexico by the summer of 2004, ACORN's effort to register voters in advance of the closely fought presidential election was a stunning success: The organization registered 35,000 voters, mostly in the Albuquerque area. "Republicans were freaking out," recalls John Boyd, an attorney for the state Democratic Party. Republicans accused ACORN of "manufacturing voters," conflating error-plagued cards with fraud while trumpeting one registration card filled out in the name of a 13-year-old boy. The boy's card became the centerpiece of the lawsuit Rep. Joe Thompson, an Albuquerque Republican, filed in August 2004 demanding that the state government require photo ID for voters registered by ACORN and other nonprofits. The lawsuit claimed that the Republican plaintiffs' votes were "diluted" by supposedly false registrations.

Their case fell apart in court, and by September, a judge dismissed the lawsuit. But Republicans were not deterred by their loss in civil court and pressed for a criminal investigation, a probe which U.S. Attorney for New Mexico David Iglesias started on the same day that the court ruled against the GOP. Iglesias was a true believer in the menace of voter fraud. As one of just two U.S. attorneys in the nation to form such task forces, he was invited to lecture other U.S. attorneys in 2005 as part of the annual Justice Department ballot-integrity conference.

Iglesias' efforts weren't enough for Patrick Rogers, the Republican National Lawyers Association point person in the state, who mounted a campaign to pressure Iglesias to bring criminal charges before the election, rather than form a task force. Indeed, even before Iglesias concluded in 2006 that there wasn't enough evidence to indict on voter fraud, major Republicans in the state had started asking the Bush administration for his removal. In early December 2006, Iglesias was one of seven U.S. attorneys whom the Justice Department fired.

Today, Iglesias says of voter fraud: "It's like the boogeymen parents use to scare their children. It's very frightening, and it doesn't exist. U.S. attorneys have better things to do with their time than chasing voter-fraud phantoms."

But the damage of chasing phantoms proved more substantial. In 2005, the state legislature, with the blessing of its Democratic governor, Bill Richardson, passed legislation that essentially crippled the ability of groups like ACORN to do mass voter registration. In 2006, ACORN had only 10 certified canvassers in the whole state, and registration plunged to 2,000 new applicants from 35,000 two years before, according to ACORN's top New Mexico organizer, Matt Henderson.

In Florida in 2004, ACORN's initiative to raise the state's minimum wage looked to be cruising to victory (it won with 71 percent of the vote), and brought in over 200,000 newly registered voters. That led business lobbies and the GOP to find a poster boy for fraud in a fired ACORN employee and ex-con named Mac Stuart, who spun elaborate tales of ACORN squirreling away hundreds of GOP voter applications it gathered but did not turn over to election officials. Republican attorneys filed two lawsuits featuring Stuart's claims. After the election, Stuart ultimately conceded that he made false statements about ACORN. In December 2005, federal judges dismissed both lawsuits.

But in the same month, the legislature passed one of the most restrictive voting-registration laws in the country. The new law fined every registration worker $5,000 for any lost application, potentially wiping out the entire budget of the state League of Women Voters if just 14 forms were lost and forcing the group to stop registering voters for the first time in over 70 years. It was not until August 2006 that a federal judge blocked enforcement of the law. However, a slightly revised version passed last year.

Responding to the GOP-generated hysteria over voter fraud, criminal investigations were launched in 2004 and 2005 in Wisconsin, Colorado, Florida, and Ohio, with ACORN often a target. But by the end of 2005, the investigations ended after finding either no evidence of wrongdoing by ACORN or any pervasive voter fraud. Nationally, only six former ACORN employees were charged with registration fraud or other election-related crimes in the 2004 election, offenses involving fewer than 20 forms. That's out of 1 million new voters registered by ACORN during that cycle.

Yet Thor Hearne, among others, took advantage of these assorted investigations and news accounts about fraud to create the fictional appearance of an epidemic, then added some fabrications of his own. Perhaps the wildest ACVR whopper -- seized on by The Wall Street Journal as late as November 2006 -- was the charge that ACORN and an affiliated group were under criminal investigation for "paying crack cocaine for fraudulent registration forms." Actually, the tale originated with the arrest of a Toledo-area man who may have received drugs while working for another volunteer for a now-defunct organization, not ACORN. Without substantiation, ACVR identified Democratic-leaning cities as hotspots for fraud. They were generally the same locations where U.S. attorneys later faced pressure over prosecutions, including Seattle, St. Louis, and Milwaukee. (The one exception to overblown investigations targeting ACORN was the indictment last year by a local Seattle prosecutor, welcomed by ACORN, of seven rogue ex-employees who had fabricated nearly 2,000 registration forms.)

The hyped reports, indictments, and hearings had their intended effect after the 2004 elections. Nearly 30 states considered bills to require photo ID or proof of citizenship to register or vote. While most of these measures haven't yet passed, those that have can be severe: An Arizona law requiring proof of citizenship to register has disenfranchised up to 60 percent of applicants in some counties.

Over the past few years, what began as local phony lawsuits and investigations escalated into a concerted drive by the Civil Rights Division to restrict voting. Since 2004, the goal of the state GOP vote-caging initiatives has become official Justice Department policy. The department has also promoted the equivalent of caging by pressuring 16 states and cities to speed up their purging of hundreds of thousands of voters through letters and lawsuits, as first reported by Alternet.

Alarmingly, the insubstantiality of the claims of pervasive voter fraud may not deter the U.S. Supreme Court from upholding Indiana's restrictive voter-ID law -- which, according to a new University of Washington study, could disenfranchise the more than 20 percent of the state's African-American voters who lack the ID required by Indiana's law. Amazingly, Indiana has admitted that there hasn't been a single alleged case of in-person voter fraud in the state's history. Instead, Indiana's attorneys and legal allies, including the federal government, have submitted virtually nothing but unverified newspaper clippings and right-wing claims about fraud allegations in other states.

Indeed, the Supreme Court, in a little-noticed comment in an earlier ruling on Arizona's ID law, has already granted government the leeway to enact laws denying the vote based merely on fears of fraud, regardless of evidence. But outside of the world of voting experts, little attention has been paid to the lack of evidence in the federal court rulings leading up to the Indiana case. As Wendy Weiser of the Brennan Center observes, "The way this case has been decided so far [in lower courts] is that a state doesn't have to justify measures to suppress the vote."

The Supreme Court is expected to issue its Indiana ruling in the next few months, and it's considered unlikely that the Court will strike down the law.

These days, weakened by the publicity over the U.S. attorneys scandal, the savvier voter-fraud propagandists are shifting their now-discredited arguments about massive voting by illegal immigrants to yet another "menace": "double voting." Republicans and some newspapers point to lists of the same names in different states to claim there has been large-scale double voting. Yet such sweeping double-voting claims are almost always due to administrative errors and the statistical probability that people with the same name and birth date will show up in large pools of voters.

Regardless of the facts, the drive for new voter-ID restrictions will likely be strengthened in the wake of the upcoming Supreme Court decision. There's little sign that progressives or Democrats are going to launch what the Brennan Center's Deborah Goldberg has called the "huge public education effort" needed to raise awareness about the problems with voter-ID laws. Democrats seemingly haven't yet grasped the political importance of fighting these restrictive policies, though they could prove a major impediment to minority voting (and if minorities voted at the same rate as whites, there would be 7.5 million more voters on Election Day).

But Johanna Sharrard and other ACORN leaders aren't going to be deterred by Republican obstacles and smears as they gear up for new registration drives this year that could be their most successful yet. Sharrard's campaign in Kentucky last year brought in over 14,000 new voters, a state record. And after seeing all the attacks against ACORN in Missouri and elsewhere, she realizes, "It's a good motivator; it showed us that that things we were doing are important." It's an open question, though, whether progressives will realize that it's worth fighting to make sure that the voters ACORN is trying to reach will actually have their votes count.

Reprinted with permission from Art Levine, "The Republican War on Voting," The American Prospect, Volume 19, Number 4: March 24, 2008. The American Prospect, 2000 L Street, Suite 717, Washington, DC 20036. All rights reserved.

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