How Safe Is This Election?
Not so long ago, when Karl Rove was still dreaming of a permanent Republican majority based on his "50 percent plus one" model for fighting and winning elections, 2008 was shaping up as possibly the dirtiest election season yet.
The plan was straightforward: to use every legislative and executive lever available to the GOP to suppress the votes of minorities, students, the poor, the transient and the elderly; and to denounce any attempt by the other side to level the playing field as a monstrous exercise in systemic voter fraud.
A lot of pieces of that plan are still in place and could still pose a threat to the integrity of the November 4 elections if any one of them -- a crucial Senate race, say, if not also the race for the presidency -- turns out to be remotely close.
Voter ID laws passed by GOP-majority legislatures in Georgia, Indiana and elsewhere serve as thinly veiled mechanisms for suppressing opposition voters, because those without driver's licenses or other forms of government-issued identity cards are more likely to be Democrats.
In several states, the Republican Party has made plans to challenge the legitimacy of thousands of voters, in some cases using a notorious, legally dubious technique known as "caging," whereby the party sends out nonforwardable mail to low-income or minority households (the people likely to move frequently or to be victims of subprime mortgage foreclosures) and uses returned envelopes to question the eligibility of the addressees.
Some Republican-run states, most notably Florida, have introduced absurdly strict standards for the admission of new voters to the rolls, making it likely that thousands, if not tens of thousands, of them will have to go to extraordinary lengths on election day to prove that they have the right to cast a ballot. History suggests many of these new voters will either give up when challenged or fail to show up at all.
Most serious, the Republicans have sought to use the Justice Department to legitimize these efforts and, in some cases, to extend them -- by paying close attention to the (mostly nonexistent) problem of individual ballot fraud while showing little or no interest in protecting the rights of minority voters, as the Voting Rights Act mandates that the department do.
The GOP has been laying this groundwork over the past several election cycles -- using each technique either as a means to squeak ahead in tight races or as a pretext for challenging results in the event of a narrow loss. We know, for example, that in 2004 the party investigated the eligibility of more than half a million voters across the country, challenged 74,000 of them directly on election day and had a plan in place to challenge tens of thousands more in such swing states as Nevada, New Mexico, Florida and Pennsylvania in the event that John Kerry came out ahead of George W. Bush in the race for the White House. (An e-mail trail setting out these plans was uncovered after the election by the PBS program Now.)
In 2008 the techniques for challenging voters this way -- or for deterring or disenfranchising them in the first place -- have become more widespread and sophisticated. Just look at the way the Republicans have demonized ACORN, the low-income advocacy group that works to register new minority voters.
In every election cycle since 2004, ACORN has been put through the wringer for supposedly aiding and abetting voter fraud -- usually in ways designed to sway the public against the Democrats in the days before a key state vote. While ACORN has had well-advertised problems getting its low-wage workforce to produce reliable voter registration lists, those lists have not been shown to result in a single fraudulently cast ballot.
This year, that demonization has taken on vast new proportions, presumably connected to ACORN's claim to have registered 1.3 million new voters. The FBI has launched an investigation that smells, once again, of political interference in the electoral process by the Justice Department. Republican operatives have accused ACORN, absurdly, of perpetrating the subprime mortgage lending crisis [see Peter Dreier and John Atlas, "The GOP's Blame-ACORN Game," page 20] and of being a "quasi-criminal organization" -- hinting darkly that ACORN-registered voters may not be eligible. One think tank that sees its mission as bashing ACORN on behalf of its big-business backers, the Employment Policies Institute, even calls it "a multi-million-dollar, multinational conglomerate."
The strange thing about this and the rest of the GOP attack machine is that somewhere along the way, the wheels started coming off. This is partly a result of straightforward political warfare: the groundwork laid by GOP operatives may be more extensive than in the past, but so are the campaigns to denounce their efforts, from the likes of Common Cause, the Century Foundation, the Brennan Center for Justice and other organizations that have issued report after report exposing the dirt and incompetence in the electoral system and calling the Republicans' bluff on the supposed scourge of individual voter fraud. It certainly helps that the denunciations are now coming from well-known groups with serious academic credentials and a commitment to accurate research -- a welcome change from the days when hardworking but underqualified Internet campaigners were breathlessly denouncing nonexistent political plots cooked up by the Republicans and the makers of touch-screen voting machines.
The change of mood is also a reflection of broader political realities. Barack Obama is ahead in the polls, the public is of a mind to view Republican maneuvering of all kinds in a less than favorable light and attempts to deter or suppress Democratic voters are up against the remarkable surge in enthusiasm and voter registration behind the Obama ticket. The Republicans were reported to be thinking about mounting a vote-caging operation against the former owners of foreclosed homes in one Michigan county, only to deny any such intent when the plan became public. In Montana, an attempt to disenfranchise 6,000 people in Democratic-leaning districts has sparked similar outrage. Dirty electioneering, in other words, may boost a party headed toward a narrow victory, as it did for the Republicans in 2004, but it can sink a floundering party like a stone. Voters can smell the desperation, and they don't like it.
The Republicans also made the mistake, as they have in so many policy areas, of overreaching and alienating even their own supporters. The US Attorneys scandal was probably the starkest example, especially since at least two if not more of the fired federal prosecutors were given the boot for their failure to pursue individual voter fraud. David Iglesias, the New Mexico prosecutor at the eye of the storm, described in his memoir In Justice earlier this year how the White House first went after Todd Graves in Missouri, to see if there would be a backlash, and became emboldened when they didn't detect much of a reaction. Another eight fired Attorneys later, the new Democratic majority in Congress was alarmed enough to start investigating -- and expose the Bush administration's gross political manipulations. Iglesias, interestingly, was a staunch Republican but refused to file unsubstantiated voter fraud charges when he knew any half-serious judge would throw them straight out.
More Republicans standing on principle have surfaced in the heat of the McCain-Obama battle. In October, Montana Lieutenant Governor John Bohlinger declared publicly he was "appalled at the leadership of my political party" for vote suppression activities that have "no place in a democracy."
It would be a mistake, though, to count on other John Bohlingers coming forward to denounce every piece of skulduggery. In fact, for those with a mind to be alarmed, 2008 is already sounding several warning bells. Republicans in at least three states -- Ohio, Florida and Wisconsin -- have sued the electoral authorities to try to expand their power to challenge voters. (The Supreme Court thwarted those efforts in Ohio, but the other cases are still open.) In plenty of others they have telegraphed their intention to go after voter eligibility among certain choice demographic groups -- students in Virginia, for example. Several swing states have tried to pass laws specifically outlawing caging and other vote-challenging techniques, but none, in the past couple of years, have successfully pushed them through their state legislatures and onto the desks of their governors.
Usually, vote suppression efforts come to light only in the last couple of weeks before election day. This time, though, the reports of foul play, or attempted foul play, started to pour in unnervingly early. "It's exhausting from this end," says one of the country's leading voter protection activists, Jonah Goldman of the Lawyers' Committee for Civil Rights Under Law. "Every day we get another three or four things we need to investigate. From a political perspective, the campaigns understand the mechanisms of elections a lot better than they ever did before. At the same time, we have by far the most robust and sophisticated voter protection program we've ever had. We've matured very far, on both sides of the issue."
Goldman is no apologist for the Democrats. On the contrary, he sees plenty of flaws to go around in the two-party system and in this country's massively devolved, loophole-ridden electoral system. The only reason the Democrats aren't causing more trouble of their own this season, he feels, is that they aren't as scared of losing. That said, voter suppression is typically a Republican tactic, going back decades. (Democrats, when they cheat, prefer to pad the rolls with supporters rather than purge them of their adversaries.)
Some of the possible vote suppression stems as much from organizational chaos as from ill will. This year, several states have struggled with a federal mandate to streamline their voter databases, leading to wide concern that eligible voters are being purged. The New York Times has found that tens of thousands of names were being struck from lists or blocked from registering in six swing states -- Colorado, Indiana, Ohio, Michigan, Nevada and North Carolina -- in apparent violation of federal law. In three states -- Louisiana, Michigan and Colorado -- the number of people who have died or moved out of state is far exceeded by the number of names taken off the voting rolls.
In a report on voter purges published earlier this year, the Brennan Center denounced a process it said was often "shrouded in secrecy, prone to error, and vulnerable to manipulation." Sometimes a highly technocratic point, like Florida's insistence that every voter registration form should provide an exact match of the name on existing state records, can have profound political ramifications. If a lot of people are going to get disqualified, it is probably the wealthier, more comfortable voters who will have time to present the proper paperwork and get themselves reinstated on election day. More transient voters, or voters with inflexible low-wage jobs, are likelier to give up once they have been told they can vote by provisional ballot only.
We can expect similar chaos with the allocation of voting machines, especially in new battleground states like Virginia and North Carolina, where the turnout for the presidential election is likely to break records. The voter registration problem and the machine allocation problem can be related, since new registrations are often a guide to likely turnout on election day. Since Virginia has a backlog on processing its registration forms, its chances of finding enough machines to satisfy demand look even dimmer. "Virginia is not preparing well," Goldman said.
To the extent that the problems affect minority voters, one might expect some sort of oversight or intervention by the Justice Department. Under the Bush administration, of course, the department has taken the opposite tack -- rushing to find individual voter fraud where it doesn't exist but filing no voter intimidation suits under Section 11(b) of the Voting Rights Act, except for one case in Mississippi where the aggrieved minority just happened to be whites. There's still a chance the department will clean up its act -- for example, it could choose to deploy teams of lawyers to problem areas in the South, as opposed to sending staffers, as it did in 2004, to keep an eye on crucial battleground states like Ohio. Typically, the Justice Department doesn't announce its observation plans until two or three days before the election. "We'll have to wait and see whether there has been an improvement or not," says a cautious Kristen Clarke of the NAACP Legal Defense Fund. We probably shouldn't hold our breath.
In the end, even the most insidious vote suppression technique makes just a marginal difference -- one half-percentage point here, another there -- and comes seriously into play only in a close race. Such tactics can't prevent an Obama landslide, if that is what we are about to see, or overturn a two- to three-point victory in any given state. Anyone who cares about fair elections, though, should be looking beyond just this presidential election. The Republicans who have dreamed up these techniques are thinking long-term strategy over many cycles, not just short-term advantage. The day may also come when Democrats are tempted to play dirty in their own ways -- although they have never attempted anything on a national scale as Republicans have. It will take many years of work to repair America's tattered voting system. Keeping a close eye and exposing as much of the dirt as possible in this election, though, is a good place to start.