The following is adapted from Michael Waldman’s new book, The Fight to Vote.
In 2016 American democracy is under significant pressure, facing trends it has not seen in decades. The cracks first began to show in the antic days of the Florida recount in Bush v. Gore. The recount fiasco surely was an extraordinary occurrence, the only time since 1876 that a presidential election had drawn so close (and the only time since 1888 that the winner of the popular vote would lose the Electoral College). But it also revealed something much more mundane. Florida’s election system had rotted as if touched by the state’s humidity: at every level it was rife with error and prone to abuse. There was much work to be done in the decade after Florida. But that’s not what happened.
Instead conservative activists focused on one thing that hadn’t occurred: voter fraud, specifically voter impersonation at the polls. The remedies sought for this phantom threat have a very tangible consequence: they make it harder to vote, in ways that especially affect Democrats.
Of course American history offers ample evidence of election fraud — that is, misconduct organized by party officials or other political operatives designed to sway results. In the 19th Century they might have stuffed a ballot box; in the 20th Century there might have been an attempt to manipulate absentee ballots (for example, by filling them out for patients at a nursing home). Purportedly independent political committees with names that obscure funding sources also pose the risk of illegality. But voter fraud — especially impersonation at the polling place — remains exceedingly rare. After all, the candidate who benefits gains little from one more vote, but the costs to the voter, if caught, are high.
In Wisconsin, where a single improper vote can bring a $10,000 fine and three years in prison, a federal judge tartly noted that “a person would have to be insane to commit voter impersonation fraud.” As for the fear that noncitizens and undocumented immigrants are voting in droves, that too poses a logical problem; few individuals would trek from home, find their way across the border, evade capture, then march into a government office and declare their name and address.
Justin Levitt of Loyola University writes, “Voter fraud, in particular, has the feel of a bank heist caper: roundly condemned but technically fascinating, and sufficiently lurid to grab and hold headlines.” It is also like a bank robbery in another way: such heists, once common, are no longer a significant problem. Technology has improved the security of vaults, and bank robbers now routinely get caught. Facing the cost-benefit analysis, would-be Bonnie and Clydes no longer try their luck. (In contrast electronic theft from financial institutions is sky high.)
The focus on fraud has deep roots in founding-era worries that the poor would sell their votes and in Gilded Age fears expressed by Protestants about immigrant voters. Today it is embedded within the modern conservative movement.
Elements on the right long had arched eyebrows at the unruly passions of the masses. During the 1950s Russell Kirk invoked the long-forgotten figure of John Randolph of Roanoke (“I am an aristocrat. I hate equality. I love liberty”) as a patron for conservative movements. Kirk gave the nascent New Right intellectual heft. His volume on Randolph makes jarring reading, as Kirk praises him for his devotion to freehold suffrage and opposition to “one man, one vote.” The white southerners who moved en masse to the Republican Party after civil rights legislation brought a harsh edge to the call for states’ rights. Those concerns melded with the idea that, somehow, the wrong people were being allowed to vote, that a bloated, profligate welfare state was being kept aloft by millions of new voters.
Conservative skepticism about voting hardened in response to Jimmy Carter’s first major policy proposal as president in 1977. Noting that voter participation in the United States ranked twenty-first among democracies, Carter proposed a nationwide system that would allow people to register on Election Day. He also urged public financing for congressional campaigns and an end to the Electoral College. At first, key Republican leaders warmed to the voting plan (the party chair called it “a Republican concept”). Within weeks, however, pressed by state party officials and conservative activists, the G.O.P. set itself against the bill. The Republican National Committee magazine warned about “Fraud and Carter’s Voter Registration Scheme.” That November, Ohio voters overwhelmingly repealed that state’s same-day registration law. Carter’s plan never came for a vote before Congress.
A key moment in the conservative political alignment that dominated American politics for three decades came in Dallas in August 1980, just after the Republican convention at which Ronald Reagan became the party’s presidential nominee. Evangelical voters had once been a bedrock Democratic Party constituency, but after the social upheavals of the 1960s and 1970s political activists organized churchgoers as a potent conservative force. The Religious Roundtable’s National Affairs Briefing gathered 15,000 people, mostly ministers, to hear Reagan speak. He consecrated a nontraditional political marriage between the Republican Party and the ascendant religious right, telling the crowd, “I know you can’t endorse me, because this is a nonpartisan meeting — but I endorse you.” The week’s most controversial remark was made by the leader of the Southern Baptist Convention, who declared, “It is interesting at great political rallies how you have to have a Protestant to pray, a Catholic to pray, and then you have a Jew to pray. With all due respect to those dear people, my friends, God Almighty does not hear the prayer of a Jew.” Badgered by reporters, Reagan found it necessary to disavow his backer’s statement.
Far less attention was paid to what New Right organizer Paul Weyrich had said to warm up the crowd. “How many of our Christians have what I call the ‘goo goo’ syndrome — good government,” he mocked. “They want everybody to vote. I don’t want everybody to vote. Elections are not won by a majority of people. They never have been from the beginning of our country, and they are not now. As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down.” Weyrich was a prolific founder of organizations and built an infrastructure of groups that lasted decades. One was the American Legislative Exchange Council (ALEC), a business-backed outfit that drafted proposals to be introduced by conservative state legislators. The organization principally focused on deregulation and corporate concerns but later drew notice for embracing a model “stand your ground” law pushed by the National Rifle Association. (Someone who felt threatened no longer had to try to retreat but could use a firearm in self-defense. It became notorious after a volunteer “neighborhood watchman” killed an unarmed black teenager, Trayvon Martin, though in the end he did not cite the law.) In 2009 ALEC drafted model voter identification bills, which were introduced in statehouses across the country. Weyrich also cofounded the Heritage Foundation, an activist conservative think tank that would become a potent popularizer of the specter of voter impersonation.
After the 2000 election Missouri became the epicenter of lurid rumors. John Ashcroft lost his US Senate race even though his opponent, Mel Carnahan, had died three weeks earlier in a plane crash. (The popular but deceased Democratic candidate’s name remained on the ballot. After he posthumously won, his widow was appointed to the seat.) Dead candidates, dead voters, swirled in the imagination. Senator Kit Bond decried a St. Louis court order that allowed polling places to stay open two hours later to accommodate voters, charging that the election had been stolen by “a major criminal enterprise designed to defraud voters.” That year St. Louis election officials alleged that thousands of people had voted despite listing vacant lots as their home.
The Post-Dispatch investigated and found that all but a few of the lots did have homes on them. In all, in 2000 and 2002 there were only four substantiated cases of double voting in the state, an overall fraud rate of 0.0003 percent.
In fact every thorough study of voter impersonation has found it to be exceedingly rare. Lorraine Minnite of Rutgers University notes that in 2005, at the peak of a federal crackdown, “federal prosecutors indicted far more people for violations of the nation’s migratory-bird laws than for election fraud.” A comprehensive national study by the Walter Cronkite School of Journalism at Arizona State University scrutinized thousands of allegations; it found ten examples of in-person voter impersonation over a dozen years. A draft study for the federal Election Assistance Commission conducted by Democratic and Republican experts concluded, “There is widespread but not unanimous agreement that there is little polling place fraud, or at least much less than claimed, including voter impersonation, ‘dead’ voters, noncitizen voting and felon voters.” Justin Levitt calculated that statistically “it is more likely that an individual will be struck by lightning than that he will impersonate another voter at the polls.”
Ashcroft recovered nicely from his unexpected defeat. George W. Bush nominated him to be Attorney General in 2001. He formally made combating voter fraud a priority for the Justice Department, demanding that “all components of the Department place a high priority on the investigation and prosecution of election fraud.” Dozens of probes produced little, though an effort was made to spin the results; a press release in 2005 summing up the department’s work nationwide, for example, breathlessly announced that three individuals had been convicted of fraudulent voting in both Missouri and Kansas. Nationwide from 2002 to 2005 only 24 people were convicted of illegal voting in federal elections and no one was charged with voter impersonation; by 2007 only 120 people had been charged and 86 convicted. “Many of those charged by the Justice Department appear to have mistakenly filled out registration forms or misunderstood eligibility rules,” a journalistic analysis concluded.
Then why the clamor? An energetic band of partisan activists produced much of the noise, many of them clustered around Ashcroft:
Bradley Schlozman, a 32-year-old lawyer, swept through the Voting Rights section of the Department’s Civil Rights Division, ignoring hiring rules: he pushed out civil servants and tried to hire fellow members of the Federalist Society, the conservative legal network. A report by the department’s independent inspector general revealed Schlozman’s approach. “I too get to work with mold spores,” he wrote to a colleague, “but here in Civil Rights, we call them Voting Section attorneys.” He continued, “My tentative plans are to gerrymander all of those crazy libs right out of the section.” Schlozman eventually became the acting chief of the Civil Rights Division. The inspector general concluded that he lied about his personnel practices. His lawyer denied the charge.
Mark “Thor” Hearne was a top counsel for the Bush reelection campaign in 2004, after which he and a party official created the American Center for Voting Rights; its “headquarters” appeared to be a post office box in a Texas strip mall. Four days after it materialized on the Internet, the group testified before Congress as sage nonpartisan experts. Two years later Hearne’s group vanished as abruptly as it had appeared. Hearne even declined to mention it in his law firm biography.
Hans von Spakovsky had served as a local party official in Georgia. Moving to the Justice Department’s Civil Rights Division, he overruled the career lawyers who wanted to object to Georgia’s new voter identification law. It turned out he had already written a law review article, using the grandly Madisonian pseudonym Publius, strongly backing the ID idea. President George W. Bush installed him on the Federal Election Commission without a Senate vote as a recess appointee. Senator Barack Obama blocked his confirmation. Eventually von Spakovsky moved to the Heritage Foundation, where he wrote dozens of articles and cowrote a book, Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk. In a typical essay on FoxNews.com, he warned, “One doesn’t have to look far to find instances of fraudulent ballots cast in actual elections by ‘voters’ who were the figments of active imaginations.” The most recent example the 2008 article cited came from the mid-1990s. Most were at least two decades old.
A former Wall Street Journal editorial writer, John Fund, now at National Review, also rang alarms. Fund’s books include the heated Stealing Elections: How Voter Fraud Threatens Our Democracy. He focuses on Democrats, he explains in that book, not for partisan reasons but because “Republican base voters are middle-class and not easily induced to commit fraud.” Fund claims that eight of the 19 hijackers on September 11, 2001, were registered to vote, but he offers no corroborating evidence, and a later study found the claim highly unlikely. Fund’s book does include some genuine examples of election misconduct. Generally these involve absentee ballots — the most susceptible to manipulation by candidates or their backers. Rarely do they involve in-person impersonation.
Rounding out the squad was a talented lawyer named Kris Kobach, who worked with von Spakovsky in Ashcroft’s orbit. Busy Kobach helped draft the 2010 Arizona law that required police to check the immigration status of drivers and passengers during traffic stops if the officer thinks there is a “reasonable suspicion” that they are here illegally. Eventually Kobach was elected to be the secretary of state of Kansas.
Panic over improper voting became a recurring riff on the right. Fox News, the conservative-leaning cable network, set up a “Voter Fraud Watch.” Former House majority leader Dick Armey, head of the organization FreedomWorks, declared preposterously that 3 percent of all ballots were fraudulent votes cast by Democrats. Using coded language he told Fox News that the problem “is pinpointed to the major urban areas, to the inner cities.” Dick Morris, the Bill Clinton advisor turned conservative pundit, and his wife, Eileen McGann, made a telling slip. Describing poor voters headed early to the polls in Ohio, they warned, “Photo IDs are necessary to combat this rampant voter fraud,” presumably defined as poor people voting. Such imagery tapped unspoken racial fears. A University of Delaware study surveyed white voters on whether identification should be required to vote. When a photo of a black man voting accompanied the question, support for voter ID jumped 6 percent over responses to the question illustrated by a photo of a white voter.
Hints emerge that at least some activists knew better, even as they pursued voting law changes. Royal Masset, political director of the Republican Party of Texas, was unnervingly frank in an interview with the Houston Chronicle: “Among Republicans, it is an ‘article of religious faith that voter fraud is causing us to lose elections,’ Masset said. He doesn’t agree with that, but does believe that requiring photo IDs could cause enough of a drop-off in legitimate Democratic voting to add 3 percent to the Republican vote.”
Adapted from Michael Waldman’s new book, The Fight to Vote.