Earlier this month, Republicans in Ohio lost their lawsuit challenging a state rule that allows voters to register and vote early on the same day. But the state party had no intention of conceding the point. GOP officials demanded records from all 88 county boards of election identifying every person who took advantage of same-day registration and voting. In one county, the Republican district attorney even opened a grand jury investigation.
"He's investigating people who the law says are allowed to vote," said Ohio ACLU lawyer Carrie Davis. After it was revealed that the district attorney was also the local chairman of the McCain campaign, he was forced to appoint a special prosecutor to handle the case.
There's no indication that any of these voters did anything illegal. But the attempt to investigate voters who took advantage of a state rule designed to encourage voter participation exemplifies the kinds of attacks on new voters that are going on across the country.
Even when the challenges fail, Republican officials persist in their claims of voter fraud in what appears to be an effort to lay the groundwork for challenging the outcome of Election Day. In about a dozen interviews, legal scholars and voting experts say this broad-based attack could lead to serious and continuing challenges to the legitimacy of the next president.
"(Republicans are) trying to do what they can to poison the well on the eve of the election because they're not winning on the issues," contends Charles Lichtman, statewide lead counsel for the Florida Democratic Party. The party, like the Obama campaign, is assembling a team of volunteer lawyers to take on unwarranted challenges and obstruction to voters on Election Day. "They know there are more Democrats registered than Republicans," said Lichtman, "so they're calling out fraud where it didn't occur."
For months now, Republicans have been claiming that voter fraud is rampant and that government officials aren't sufficiently cracking down. Democrats insist that voter fraud is practically nonexistent -- the real problem is intimidation and harassment of voters at the polls, they say.
Voting-rights experts tend to agree with the Democrats. A study by the Brennan Center for Justice, for example, found that, "It's more likely that an individual will be struck by lightning than that he will impersonate another voter at the polls."
Another study, by Barnard College political scientist Lori Minnite, similarly concluded that voter fraud is "extremely rare." The Brennan Center also showed that the sort of strict rules advocated by Republicans in Wisconsin, Ohio and elsewhere would disenfranchise thousands of people -- usually the poor, elderly and minorities.
Even the most rigorous studies, however, haven't made the issue any less of a political football. Republicans like Cleta Mitchell, an election lawyer who chairs the Republican National Lawyers Assn., says such experts are just part of "the professional vote-fraud deniers industry," insisting that voting fraud exists even if it's nearly impossible to prove.
"If you just deny it," Mitchell said, "then that means that anyone who wants to take any steps to protect the integrity of the process can only be doing that because they're a racist."
In fact, even official Justice Dept. policy had acknowledged until recently that individual voter fraud has "only a minimal impact on the integrity of the voting process" and therefore usually wasn't worth trying to prosecute. Then last year, the Bush administration changed that to allow individual prosecutors to pursue such cases at their discretion.
When some U.S. attorneys refused because of a lack of evidence, several were fired, contributing to the scandal that ultimately forced the resignation of Atty. Gen. Alberto Gonzales. Since then, Democrats have become even more vigilant in fighting back against claims of voter fraud.
In many states -- including Florida, Ohio, Wisconsin and Oregon -- Republican officials have insisted that states square new voters' registration information with that in other state databases, such as motor vehicle or Social Security. While such matching is required by the Help America Vote Act of 2002, Republicans in swing states are insisting that the match be exact as a condition to vote.
Some of these "no-match, no-vote" states allow voters whose registration doesn't match to fill out a provisional ballot, but they must provide matching verification information to election officials within 48 hours or their votes won't count. In close swing states, which votes are counted could make all the difference to the outcome.
In Ohio, for example, Republicans sued Secretary of State Jennifer Brunner to make matching a condition of voting. In response, she argued that adopting such a rule could get some 200,000 Ohio voters kicked off the rolls. The problem is not that they're ineligible, for the most part. It's that the information doesn't match because voters have changed their names or because state workers have made clerical errors.
Earlier this month, the U.S. Supreme Court sided with Brunner. Ruling on procedural grounds, it found that the state GOP likely didn't have the right under federal law to challenge the Ohio law's application. So Ohio Republicans are taking their fight elsewhere. Last week, they sent a letter to U.S. Atty. Gen. Michael Mukasey asking him to force Ohio to require matching under federal law.
And on Friday, President George W. Bush himself got involved, asking Mukasey to investigate the status of the 200,000 non-matching Ohio voters.
The Republican attorney general in Wisconsin brought a similar challenge against his state's elections board, but it failed last week. (The attorney general plans to appeal the decision.) A Dane County judge ruled that, "Nothing in state or federal law requires that there be a data match as a condition on the right to vote." A matching requirement, the elections board had found, could have disenfranchised more than 20 percent of Wisconsin's registered voters.
Republicans have lost most of their legal challenges claiming states aren't adequately protecting against voter fraud. But legal experts worry that the steady barrage of legal attacks in battleground states is part of a broader effort to lay the groundwork for undermining the legitimacy of the outcome of the presidential election. That could further fuel the anger of the Republican base against the Democratic candidate -- and possibly the next president.
"If it's close, and if, in the grand scheme of things, Ohio would make a difference in the Electoral College or the finally tally, all these aspersions could come into play in challenging those results," said Davis, the Ohio ACLU attorney. Either party could bring a legal challenge questioning the validity of provisional or absentee ballots.
While experts say it's rare to see the sort of scenario that occurred in Florida in 2000, where the outcome of the presidential election hinged on a few hundred votes in one state, the increased focus on voter problems and recent changes in voting laws means litigation over the outcome remains a real possibility.
"Besides Florida, you'd have to go back to the 19th century in the United States to get to an election that was that close," said Daniel Tokaji, a law professor at Ohio State University and an expert in election law. "Then again, in 2004 we weren't that far away -- there were about 100,000 votes in Ohio on which the outcome depended. If we'd had a second litigated election in 2004, it would have been like lightning striking twice. So it could happen again."
Because of the close elections and revelations of voting problems in 2000 and 2004, said Tokaji, "we've got people paying much closer attention to the mechanics of elections." Also, "there are a lot of changes in the law. That always leads to more litigation, because there are issues of how those laws should be interpreted and applied."
Even if the election weren't close enough to merit legal challenges, many Democrats worry that the GOP claims of voter fraud are a preemptive attempt to undermine the legitimacy of a Barack Obama presidency.
"It's a desperate attempt to unfairly flavor and throw something out there and take people away from the real issues," said Lichtman of the Florida Democratic Party. Florida's voter registration rules, which require all voter registration information to match the state databases, have been the subject of ongoing litigation.
The History of Voter Fraud
Claims of voter fraud before an election are nothing new, of course. For centuries, strict-voter registration rules have been applied to limit access to voting, often targeting the poor and minority citizens.
"We've seen it throughout American history," said Tokaji. "In the 19th century, claims of fraud were made to exclude immigrants, ethnic minorities and laborers. And throughout most of the 20th century, the disenfranchisement of African-Americans in the South was done through voter-registration requirements that local officials claimed were to prevent voter fraud."
More recently, Republicans have been claiming widespread voter fraud to tighten requirements on who can vote. "They're trying to use the so-called epidemic of voter fraud to justify voter ID laws," said Gerald Hebert, a senior elections official at the Justice Dept. from 1973-1994 and who is executive director of the Campaign Legal Center, a nonpartisan organization focusing on election reform.
That's how Indiana came to pass its voter-identification law. When that law was challenged, the Supreme Court acknowledged there was no evidence of voter fraud in Indiana. Still, the court upheld, by a vote of 6 to 3, the state's requirement that voters present a state-issued photo identification card before casting a ballot, finding that it did not impose an unjustified burden on the poor, minorities or others less likely to have such a photo ID
Associate law professor Michael Pitts at Indiana University studied the effects of the new law. He found the votes of 80 percent of Indiana residents forced to fill out a provisional ballot because they didn't have the required I.D. card were never counted.
The ACORN Controversy
Recent revelations that some workers from the Association of Community Organizations for Reform Now, or ACORN, have turned in fraudulent registration forms has fanned the flames of this dispute, leading to calls for more voter-identification laws, as well as no-match, no-vote requirements.
But Republicans' claims against ACORN have gone further. Legislators and party officials have used the false registrations to claim that ACORN is engaging in an effort to steal the election for the Democratic Party. Investigations of fraudulent activity are going on in at least 10 states, and the Justice Dept. has reportedly begun an investigation of ACORN, a community-organizing group that advocates on behalf of low-income families, following requests from numerous Republicans.
Sen. John Cornyn (R-Tex.), for example, a member of the Senate Judiciary Committee, wrote to Mukasey earlier this month, urging him to investigate ACORN as a "criminal enterprise."
The Obama campaign and former Dept. of Justice lawyers involved in voting-rights issues say such an investigation before the election might intimidate legitimate voters and violate Justice Dept. policy.
ACORN has repeatedly explained that when its workers submitted false registrations, the fraud was against ACORN, not against voters or the elections process. That's because the duplicate or made-up registration forms were mostly turned in by workers who ACORN paid to sign up voters in their neighborhoods.
That some of those workers copied names out of the phone book, or listed their favorite cartoon characters, doesn't mean those people are going to show up to vote. But it does mean that ACORN didn't get it's money's worth. The group checks all submitted registration forms and flags for local election officials those that are suspect. In most states, it's still required by law to turn all forms in.
"The overwhelming evidence is that fraudulent voter registrations do not lead to fraudulent voting," said Wendy Weiser, a deputy director specializing in voting rights at New York University's Brennan Center for Justice. "It's a big resource drain on election officials, but it doesn't affect the outcome."
That hasn't stopped the allegations. Sen. John McCain's claim in the last debate that ACORN is potentially committing "one of the greatest frauds of voter history in this country, maybe destroying the fabric of democracy" has helped set the stage for broad claims of a stolen election after Nov. 4.
McCain's remarks were followed by violence. Within days, two ACORN offices were vandalized, and one organizer received a death threat. People for the American Way reports that ACORN offices have received a barrage of racist and threatening voicemails and emails.
ACORN's own exaggerations about its effectiveness in registering voters haven't helped. Last Thursday, the group admitted it had vastly overstated the number of legitimate new voters it registered this year, acknowledging that about 30 percent of the 1.3 million new voters it had claimed credit for were either duplicates or not real.
Though some percentage of erroneous applications is expected, both the large number of registered voters and the colorful news stories -- about how characters like Mickey Mouse have registered, for example -- encouraged Republicans to keep hammering away at charges that the liberal-leaning group, which advocates on behalf of low-income Americans expected to favor Sen. Barack Obama, is planning to steal the presidential election for Democrats.
Given the latest polls, it probably wouldn't need to. But election lawyers worry that the problems of voter registration by groups like ACORN provide an easy way for Republicans to later claim, if Obama wins, that he's not the legitimate president.
"It does seem like there is an attempt to cast the specter of voter fraud over this election," said Hebert. "Like there's an attempt to get people all riled up in the base of the Republican Party, to say, 'We're not going to let people steal our election.'"