Richard L. Hasen

Why the GOP Is Nuts About ACORN

What explains the Republicans' fixation on ACORN in recent days? From Sen. McCain's campaign manager to GOP luminaries to the McCain campaign's own new web ad, ACORN appears to be target # 1 of the GOP campaign against Senator Obama, surpassing even a focus on William Ayers. The claims are that ACORN is engaging in massive voter fraud through its voter registration activities, and -- according to the new web ad -- that the group forced banks to take on risky loans that have led to the country's financial crisis. Though at first glance it may look like this is about tying Senator Obama to a group that has been under investigation for its voter registration activities, the real point appears to be part of a broader Republican strategy to remove likely Democratic voters from the voter rolls and to lay the groundwork to contest the outcome of the presidential election in the event of an extremely close result in a battleground state.

Let's start with the direct Obama connection. The McCain campaign is trying to associate the campaign with ACORN's questionable activities, in the same kind of guilt-by-association claims made about William Ayers and Obama "palling around with terrorists." It is a nice bonus that ACORN has been involved in housing issues as well, as it is a chance to deflect attention from the Bush Administration's handling of economic issues and placing blame on a convenient scapegoat. (Next we will learn that ACORN invented financial derivatives.)

With the polls showing the McCain campaign consistently lagging, it is raising the ACORN issue among others to see if it sticks.

But we should resist the temptation to chalk up this ACORN obsession to just another guilt-by-association campaign tactic. For the last three elections, Republicans have been ramping up cries of voter fraud as a way of undermining the legitimacy of the election results should they not turn out in their favor and providing a reason for strict voting purges that are likely to remove many Democratic voters from the rolls.

We saw the voter fraud call in 2004, when Republicans virtually guaranteed that they would have challenged the presidential election results if John Kerry won and the results turned on the outcome in New Mexico, which Republicans said was rife with voter fraud. (Don't forget that this unsubstantiated concern drove the U.S. attorneys scandal.) We saw it with the activities of the American Center for Voting Rights, a Republican-aligned group that promoted the unsubstantiated claims of impersonation voter fraud in an often-successful effort to enact voter identification laws. We see it now with the reissuance of John Fund's book, Stealing Elections, full of anecdote but virtually no evidence of systematic voter fraud that can lead to a change in the outcome of elections. (The kind of fraud that leads to changes in election outcomes has been with absentee votes, which have mostly been ignored in these efforts.) And just try doing a Google News search for the term "voter fraud." You will see people who believe that foreign money is flooding the Obama campaign, that Obama is not a natural born citizen, and that the election will be stolen through voter fraud.

This is the reason that the ACORN controversy is a godsend to the Republicans. It fits into their meme that the election of Obama would be illegitimate and procured by fraud.

ACORN has been very active in registering voters, especially in big cities and in battleground states. It hires low income workers to do the registration (part of a way of providing additional employment for these workers), and there have been numerous documented cases of ACORN workers turning in fraudulent registration forms. These problems have led to convictions and new investigations -- -including a raid earlier this week in Nevada (which, by the way, has a Democratic Secretary of State).

ACORN has claimed that it is a victim of the fraud, not a perpetrator of it. It argues that it can't help it if a small share of its workers are turning in these forms. I find this kind of argument unpersuasive. With these persistent problems, ACORN needs to find a different business model for registering voters, even if it means that fewer voters will be registered and fewer low income people employed in the voter registration business.

But the important point now is that fraudulent registrations put in by ACORN employees are not going to lead to fraud at the polls, and Governor Danforth recently claimed in a conference call with reporters. Why else would ACORN submit phony registration forms if not to game the outcome of the election, he asked. The answer is simply that these employees want to keep their jobs. And it is worse if employees are pressured to meet quotas to turn in a certain number of forms, something ACORN denies it is doing.

So even if Mickey Mouse is registering, he is not showing up on election day to cast ballots, and so far as I am aware, there have been no cases of phony voter registrations leading to the casting of votes in any election that have been on any large scale -- much less affected the outcome of elections. So we should all agree that those who submit fraudulent voter registration forms should be punished criminally, but that such activity is not going to affect the outcome of the presidential election: Obama is running way ahead in the polls, and if he wins in a landslide it is not because Donald Duck has voted thousands of times in key swing states.

But cries of voter fraud allow for harsh purging of voters from the rolls. Because of decentralization of election authority and a lack of administrative competence or will, the rolls are inaccurate in many states. Careless purging -- driven by unsubstantiated fears about voter fraud -- can lead to many eligible voters being incorrectly removed from the polls. Despite the fact that eligible voters are being removed from the polls, the GOP is pushing for more purging in Ohio, and they found a sympathetic federal judge, citing ACORN's activities, in requiring the Democratic Secretary of State to allow county elections board to purge of many new Ohio voters who do not have an exact match in inaccurate databases.

And if the election comes down to the counting of provisional ballots cast in a state like Colorado, look out. We can expect to see James Baker back on television, this time demanding that the results be changed in McCain's favor because of massive voter fraud. From little ACORNs can come mighty lawsuits.

Will Armies of Lawyers in Service to Political Parties Determine Election 2008?

Editor's Note: This article was originally published in the Loyola Lawyer.

If November 2008 is anything like November 2004, "armies of lawyers" are going to provide an important, though controversial, kind of service for their favorite political parties: they will be monitoring election administration in key battleground states and standing ready for (or already engaged in) litigation over the means for casting and counting of votes, especially for president of the United States.

Ordinarily, we might think of such pro bono service by lawyers as an unmitigated good; after all, busy and talented lawyers are offering their considerable intellectual firepower and practical legal experience in support of the democratic process. But sometimes there is too much of a good thing, and armies of lawyers deployed to watch our elections may actually undermine voter confidence in the fairness of the election process and make it more likely that a close election will be decided by the courts, rather than the people.

How did we get to such a state of affairs, that we expect presidential candidates to "lawyer up" in advance of Election Day? The problem traces back to 2000, and is perhaps the result of the extraordinary Florida dispute that culminated in the United States Supreme Court's opinion in Bush v. Gore, 531 US 98 (2000). With the help of some very able Loyola Law School research assistants, I have been keeping track of the amount of election law litigation. The figures are quite stark: before 2000, the courts decided an average of about 96 election challenge cases per year. Since 2000, that number has jumped to an average of 230 cases per year -- with the largest single year total being the last presidential election year of 2004.

It is unclear precisely why election litigation took off in 2000. The increase began even before the Florida debacle, but has clearly accelerated since then. One theory is that the litigation is simply the product of increased polarization in the electorate. Democrats and Republicans have grown increasingly apart in their views and actions, in Congress and in the public's views of the incumbent president. Such increased conflict may be spilling over into courts.

Many lawyers are strong partisans, and they are eager to lend their talents in pursuit of their cause. A second, and perhaps related, theory for the rise in litigation is that candidates and parties have become less willing to accept the results of a close election at face value, especially since -- as we know from Florida -- the administration of elections is far from perfect. As candidates pursue election law as part of their political strategy to get elected or stay in office, they can focus in a close election on any number of problems that might provide the basis for a challenge. There may be problems with ballot design, lack of clarity in the applicable election rules, problems with voting technology or other issues that all may present the opportunity for litigation.

Indeed, the response to Florida has itself opened up the opportunity for new litigation, as states have rolled out (and sometimes re-rolled out) new technology (and accompanying new laws and administrative rules) for the casting and counting of ballots. Many of these technologies have been deployed for the first time in a presidential election year, much like a producer's decision to bring a play straight to Broadway without an opportunity to work out the kinks in less important venues.

Whatever the cause of the increase, it could be contributing to an increase in public perceptions that the election process itself is unfair. Since 2000, we've seen a partisan gap in this regard, too.

Democrats and African-Americans have shown the most skepticism about the fairness of the electoral process in polls since 2000, but part of that might be that these groups had been on the losing end of some close election results. In Washington State, which saw a razor-thin gubernatorial election resolved by the courts in 2005 in favor of the Democratic candidate, Republican voters were much more likely to express skepticism about the fairness of the electoral process than were Democrats.

It is not clear that courts can do much to stop the tide of litigation. One possibility is for courts to work on structuring the timing of election law litigation. The electoral process and the judicial system are under the most strain when courts must decide the outcome of very close elections. I suggest that, when possible, courts should try to resolve election disputes before the election. Thus, if there is a potential problem with a ballot design or voting technology, complaining litigants should bring suit as soon as they could reasonably be expected to see the problem -- and if they wait too long, courts should bar their claim under the doctrine of laches for unreasonable delay. In other words, sue early or don't sue at all.

Structuring the timing of election litigation is only a partial solution. Legislatures should also take steps to clarify election laws (so there is less to litigate) and to make sure that professional, nonpartisan administrators run elections. Unfortunately, since 2000, legislatures have not done their share to improve the election system much. Indeed, many election reforms such as new voter identification laws have passed on party line votes.

In the end, what likely will save this country from another Bush v. Gore in November is not the lawyers, courts or legislatures. It is the simple fact that litigating over election results only makes sense when the results are extremely close in terms of actual numbers of votes. Most elections are simply beyond the "margin of litigation." As we enter this election season, I cannot help but utter the Election Administrator's prayer: "Lord, let this election not be close."

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