The following is an excerpted chapter by Steve Rosenfeld from the new book "Loser Take All," edited by Mark Crispin Miller (Ig Publishing, 2008).
Jim Crow has returned to American elections, only in the twenty-first century, instead of men in white robes or a barrel-chested sheriff menacingly patrolling voting precincts, we are more likely to see a lawyer carrying a folder filled with briefing papers and proposed legislation about "voter fraud" and other measures to supposedly protect the sanctity of the vote.
Since the 2004 election, activist lawyers with ties to the Republican Party and its presidential campaigns, Republican legislators, and even the Supreme Court -- in a largely unnoticed ruling in 2006 -- have been aggressively regulating most aspects of the voting process. Collectively, these efforts are undoing the gains of the civil rights era that brought voting rights to minorities and the poor, groups that tend to support Democrats.
In addition, the Department of Justice (DOJ), which for decades had fought to ensure that all eligible citizens could vote, now encourages states to take steps in the opposite direction. Political appointees who advocate for stringent requirements before ballots are cast and votes are counted have driven much of the DOJ's Voting Section's recent agenda. As a result, the Department has pushed states to purge voter lists, and to adopt newly restrictive voter ID and provisional ballot laws. In addition, during most of George W. Bush's tenure, the DOJ has stopped enforcing federal laws designed to aid registration, such as the requirement that state welfare offices offer public aid recipients the opportunity to register to vote.
The Department's political appointees have also pressured federal prosecutors to pursue "voter fraud" cases against the Bush administration's perceived opponents, such as ACORN (Association of Community Organizations for Reform Now), which conduct mass registration drives among populations that tend to vote Democratic. Two former federal prosecutors have said they believe that they lost their positions for refusing to pursue these cases.
The proponents of this renewed impetus to police voters comes from a powerful and well-connected wing of the Republican Party that believes steps are needed to protect elections from Democratic-leaning groups that are fabricating voter registrations en masse and impersonating voters. Royal Masset, the former political director of the Republican Party of Texas, said in 2007 that is an "article of religious faith that voter fraud is causing us to lose elections." While Masset himself didn't agree with that assertion, he did believe "that requiring photo IDs could cause enough of a drop off in legitimate Democratic voting to add 3 percent to the Republican vote."
While voter fraud and voter suppression have a long history in American politics, registration abuses and instances of people voting more than once are rare today, as federal officials convicted only twenty-four people of illegal voting between 2002 and 2005. Moreover, modern voter fraud, when it occurs, has involved partisans from both parties, although it is rarely on a scale that overturns elections. In contrast, new voter registration restrictions, such as requiring voters to show a government-issued photo ID, are of a scale that can affect election outcomes.
The Brennan Center for Justice at New York University Law School has found that 25% of adult African-Americans, 15% of adults earning below $35,000 annually, and 18% of seniors over sixty-five do not possess government-issued photo ID. While various studies -- such as a 2006 Election Assistance Commission report by Tova Andrea Wang and Job Serebrov, and a 2007 study by Lorraine Minnite of Barnard College -- have found modern claims of a voter fraud "crisis" to be unfounded, that has not stopped states from adopting remedies that impose burdens across their electorate and on voter registration organizations. "Across the country, voter identification laws have become a partisan mess," Loyola University Law Professor Richard Hasen said in an Oct. 24, 2006 Slate.com column, speaking of one such remedy. "Republican-dominated legislatures have been enacting voter identification laws in the name of preventing fraud, and Democrats have opposed such laws in the name of protecting potentially disenfranchised voters." Hasen was commenting on a little-noticed 2006 Supreme Court ruling, Purcell v. Gonzales, which upheld Arizona's new voter ID law. The court unanimously affirmed the state's 2004 law, writing that, "Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised."
Hasen said that while the ruling "seem[ed] reasonable enough" at first glance, it actually was deeply troubling, as the Court never investigated if there was evidence of widespread voter fraud, and never examined "how onerous are such [voter ID] laws." Instead, it adopted the Republican rhetoric on the issue "without any proof whatsoever." Hasen then quoted Harvard University History Professor Alexander Keyssar on the Court's rationale. "FEEL disenfranchised? Is that the same as 'being disenfranchised?' So if I might 'feel' disenfranchised, I have a right to make it harder for you to vote? What on Earth is going on here?"
What on Earth is going on here?
"These things have become partisan," Democratic California Representative Juanita Millender-McDonald replied at a March 2005 congressional field hearing when asked why she and others in Congress had come to Ohio to investigate the 2004 election. "Images are so critical, especially when the stakes are high and stakes are high in presidential elections," the now-deceased congresswoman continued, referring to the lingering memory of thousands of African-Americans waiting for hours outside in a cold rain to vote the previous November in Ohio's inner cities. Many elected Democrats and voting rights attorneys saw the delays as intentional voter suppression resulting from partisan election administration. To some, it stirred memories of the segregated south.
Cleveland Democratic Congresswoman Stephanie Tubbs Jones, who six weeks earlier had stood with California Democratic Senator Barbara Boxer to contest Ohio's 2004 Electoral College votes, was also present at the hearing, and had several testy exchanges with Ohio's Republican Secretary of State Kenneth Blackwell over his administration of the election. One particular exchange concerned how Blackwell had spent millions of dollars for advertisements that neglected to tell Ohioans where else they could go to vote if they were delayed at their own polling place -- a small but telling example of election administration with partisan implications:
Ms. Tubbs Jones: In this ad you said, "Vote your precinct," but you never told them that if they couldn't vote in precinct, they could go to the Board of Elections and vote. Did you, sir?
Secretary Blackwell: I sure didn't.
Ms. Tubbs Jones: Excuse me?
Secretary Blackwell: Can't you hear? I said I sure didn't.
But while Democrats like Tubbs Jones were looking back at 2004, Republicans were looking ahead at shaping the future electorate to their advantage. The hearing was notable because it signaled the start of a renewed Republican campaign to highlight "voter fraud" as an issue needing legislative redress. The assertions and responses that unfolded that day would be heard in many states in 2005 and 2006 as GOP-majority legislatures "dealt" with the issue. Ohio Republican Representative Kevin DeWine spoke of a proposed voter ID law -- which would later pass -- and suggested that the Legislature's concern was not whether the law would pass, but how tough it should be. The state also added strict new rules for mass voter registration drives early in 2005, which were overturned in federal court in February 2008, and later passed a bill facilitating Election Day challenges to individual voters. Ohio Republican State Senator Jeff Jacobson said that these laws were needed to stop "fraudulent registrations" because national groups "are paid to come in and end up registering Mickey Mouse .... The millions of dollars that poured in, in an attempt to influence Ohio, is not normal."
What Jacobson said was true, though lacking in context. Groups like ACORN and Americans Coming Together had registered millions of new voters in battleground states before the 2004 election, and some of ACORN's staff -- i.e. temporary workers -- had filed a handful of registration forms with fabricated names. ACORN discovered the error, alerted the authorities and prosecutions ensued. While those mistakes were cited by politicians like Jacobson as evidence of a national voter fraud crisis, others, such as Norman Robbins, a Case Western University professor and co-coordinator of the Greater Cleveland Voter Coalition, urged the House panel to look at the facts and keep the issue in perspective:
"We desperately need research on all of the issues raised today," he said. "For instance, what are the real causes and effects of the long lines? How many voters were actually disenfranchised? How long did they take to vote? That would be one set of questions. Does showing an ID increase the reliability of the vote or does it disenfranchise people? Those are answerable questions. How many people truly have been convicted of election fraud? What do we really know about this in terms of cases and conditions."
To answer those questions, the committee chairman, Republican Bob Ney -- who has since been convicted and jailed on bribery charges -- turned to a long-time Republican operative, Mark "Thor" Hearne, who introduced himself as an "advocate of voter rights and an attorney experienced in election law." Hearne, a lawyer based in St. Louis, certainly was experienced. In 2000, he had worked for the Bush campaign in Florida during the presidential recount. He was also the Vice President of Election Education for the Republican National Lawyers Association, which helps the party train partisan poll monitors. In 2004, he became counsel to the Bush-Cheney campaign, where he "worked with White House presidential advisor Karl Rove and the Republican National Committee to identify potential voting fraud in battleground states ... and oversaw more than 65 different lawsuits that concerned the outcome of the election."8 After 2004, "with encouragement from Rove and the White House, Hearne founded the American Center for Voting Rights (ACVR), which represented itself as a nonpartisan watchdog group looking for voting fraud." The group would go on to urge federal and state officials to prosecute voter fraud, adopt tougher voter ID laws and purge voter rolls. It would also file legal briefs in voter ID cases, urging tighter regulations.
Hearne presented the panel with a report suggesting that fraudulent registrations were threatening U.S. elections. The report listed problems in Ohio cities with sizeable African-American populations -- the state's Democratic strongholds. Nationally, ACVR would use the same approach to identify other voter fraud "hot spots."
A national pattern
Though the facts were slim, Republicans across the country acted as if a voter fraud crisis was rampant. As a result, Republican-controlled legislatures in Georgia, Indiana, Missouri, Pennsylvania and Wisconsin passed new voter ID requirements after the 2004 election, although gubernatorial vetoes or court orders nullified these laws in every state except for Indiana. (In January 2008, the Supreme Court heard a challenge to Indiana's voter ID law.) Meanwhile, two states with Republican-majority legislatures -- Florida and Ohio -- made voter registration drives more difficult by raising penalties for errors on registration forms, as well as shortening the timeline for organizers to submit these forms -- which prevents these groups from checking the registrations for accuracy and completeness. Litigation and court rulings reversed those laws before the 2006 election, but not before the League of Women Voters was forced to halt registration drives in Florida for the first time in the group's 75-year history. In Ohio, where ACORN was registering approximately 5,000 new voters per week, those efforts were suspended during the litigation, meaning an estimated 30,000 people were not given the opportunity to register.
Since 2004, five other states have imposed new restrictions on voter registration drives -- Colorado, Georgia, Maryland, New Mexico and Missouri -- according to research by Project Vote, which has worked with the Brennan Center for Justice to challenge these laws. To date, these laws still remain on the books in Missouri and New Mexico. "It's no secret who these restrictions affect," wrote Michael Slater, Project Vote's deputy director, in the October 2007 issue of The National Voter, a publication of the League of Women Voters. "In 2004, 15 percent of all African-American and Latino voters were registered to vote as a result of an organized drive; an African-American or Latino voter was 65 percent more likely to have been registered to vote by an organized drive than a White voter. In the final analysis, spurious allegations of voter fraud give rise to yet more roadblocks on the path to full participation in political life for historically disadvantaged Americans."
These state-level responses to voter fraud did not occur in a vacuum. Since the creation of the Civil Rights Division of the Justice Department a half-century ago, the federal government has had great power and influence over how states implement voting rights. But by early 2005, the same mindset shared by GOP legislators in Ohio and other states, and by vote fraud activists like Hearne, could also be found among the Bush administration's senior appointees overseeing voting rights at the DOJ.
Just four days before the 2004 election, the Department's civil rights chief, Assistant Attorney General Alex Acosta, wrote to a federal judge in Cincinnati who was deciding whether to allow the Ohio Republican Party to challenge the credentials of 23,000 mostly African-American voters. Acosta supported the voter challenges, saying an order to block them could undermine the enforcement of state and federal voting laws. The challenges, Acosta wrote, "help strike a balance between ballot access and ballot integrity." The voter challenges were allowed to go forward, although the final judicial ruling came too late for Ohio's Republican Party to deploy thousands of party members to local precincts to challenge voter credentials.
Another sign of the Department's shift from its historic mission of enfranchising voters to a new "selective enforcement" mindset could also be seen by 2005 when a coalition of voting rights groups failed to convince the Department to enforce the law that requiring states to offer welfare recipients the opportunity to register to vote. "In January 2005, we had a 10-year report, which documented the 59 percent decline [in registrations] from 1995 through 2004," said Scott Novakowski of the center-left think tank Demos. He added that many states, including Arizona, Connecticut, Florida, Massachusetts, Missouri, Montana, New Jersey, Pennsylvania and Tennessee, were ignoring the registration requirements for welfare recipients. "John Conyers [now the House Judiciary Committee chairman] and 29 other representatives asked Attorney General Alberto Gonzales to look into this, and there was no response."
The political stakes in registering low-income voters are enormous. The Election Assistance Commission's biennial voter registration report for 2005-2006 found that while 16.6 million new registration applications were received by state motor vehicles agencies, only 527,752 applications came from public assistance offices -- a 50 percent drop from 2003-2004. As a result, in early 2005, voting rights groups met with the DOJ's top Voting Section officials -- including Hans Von Spakovsky, counsel to the assistant attorney general overseeing the Voting Section, and Voting Section Chief Joseph Rich -- to discuss enforcing the public assistance requirement. Von Spakovsky, like ACVR's Hearne, had worked for Bush in Florida during the 2000 recount and was among a handful of GOP appointees who were established "vote fraud" activists.
Rich, a Civil Rights Division attorney for thirty-seven years, had been chief of the Voting Section for six years when he resigned in April 2005, citing politicization of voting rights enforcement. Rich recalled the meeting about the voter registration requirements, saying that Von Spakovsky -- who had become his de facto boss -- decided to ignore that part of the law, and instead focus on one line in the statute that allowed the Justice Department to pressure states to purge voter rolls. "Four months before I left, in 2005, Von Spakovsky held a meeting where he said he wanted to start an initiative for states we want to purge ... Their priority was to purge, not to register voters ... To me, it was a very clear view of the Republican agenda ... to make it harder to vote: purge voters and don't register voters."
The Bush Administration Voting Section
Rich was one of a number of career attorneys at the DOJ Voting Section who resigned because pressure from the Bush administration had altered the agency's historic civil rights mission. Between 2005 and 2007, 55 percent of the attorneys in the Voting Section left, according to a report by NYU's Brennan Center and the Lawyers' Committee for Civil Rights Under Law, which cited, among other things, a "partisan hiring process," "altered performance evaluations" and "political retaliation on the job." The shift in enforcement philosophy did not go unnoticed. In July 2006, The Boston Globe reported that the Civil Rights Division had turned away from hiring lawyers with civil rights movement backgrounds. Of the nineteen attorneys hired since 2003, The Globe reported, eleven were members of the conservative Federalist Society, Republican National Lawyers Association, or had volunteered for Bush-Cheney campaigns. Moreover, the Voting Section had virtually stopped filing suits on behalf of minority voters. Wade Henderson, president of the Leadership Conference on Civil Rights, told the House Judiciary Committee on March 22, 2007 that, "The Voting Section did not file any cases on behalf of African-American voters during a five-year period between 2001 and 2006," adding that, "no cases have been brought on behalf of Native American voters for the entire administration." While the Justice Department had all but stopped filing lawsuits on behalf of Native and African-Americans, the Voting Section had more than doubled the number of lawsuits seeking to enforce the providing of bilingual ballots and election materials in Latino and Asian communities, constituencies that were seen as likely Republican swing votes, particularly after the GOP made electoral gains among Latinos in 2004.
That the administration's appointees overseeing voting rights would politicize the Voting Section should have surprised no one.
Early in Bush's first term, conservative publications like the National Journal were clamoring for wholesale changes in the Civil Rights Division. "There may be no part of the federal government where liberalism is more deeply entrenched," the Journal's John Miller wrote on May 6, 2002. "Keeping ineligible voters off registration lists is the first step in limiting fraud," wrote Von Spakovsky in a 1997 Georgia Public Policy Foundation article, where he described various scenarios where he believed Democratic partisans were "sending imposters to vote, to request absentee ballots, or to otherwise generate fraudulent votes." In July 2001, Von Spakovsky began his testimony on "election reform" before the Senate Rules Committee by stating that, "One of the biggest threats to voter rights and election integrity today is the condition of our voter registration rolls. Many jurisdictions now have more registered names on their voter rolls than they have voting age population within their borders. This is an invitation to fraud and chaos since the many invalid and multiple registrations that exist can serve as a source pool for fraud."
According to a Brennan Center and Lawyers' Committee for Civil Rights Under Law report, there were four "connected pieces of strategy" to politicize the enforcement of voting rights by the Department of Justice from 2004 through 2007: "fomenting fear of voter fraud;" "dismantling the infrastructure of Justice;" "restricting registration and voting;" and "politically motivated prosecutions." According to the report, from 2003 to 2005, the Voting Rights Section:
· Sent Maryland a letter before the 2004 presidential election saying that the state could reject voter registrations that did not match information on other state databases. That "no-vote, no-match" standard has been criticized as being too strict, due to typos and data-entry errors.
· Pre-cleared congressional redistricting in Texas in mid-decade, instead of waiting for the once-a-decade census report, as has been the standard practice. The Department must approve election law changes in states and counties under jurisdiction of the Voting Rights Act. The Texas redistricting case was seen as leading to the election of four Republican House candidates in 2004. In 2006, the Supreme Court issued a decision upholding parts of that redistricting plan.
· Argued that individual citizens have no right to private action -- or the ability to sue to seek redress-under HAVA. That right has been a key component of the Voting Rights Act of 1965, leading citizens to file numerous suits such as one in 2006 by African-American voters in Columbus, Ohio, whose precincts did not receive the same per capita number of voting machines as nearby white suburbs.
· Pre-cleared a new Georgia photo ID law, even though the section's career attorneys recommended rejecting it. The courts later nullified the law, comparing it to imposing a "poll tax" due to costs associated with obtaining the required government photo ID. The state has since modified the law, relaxing the ID standard.
· Issued an opinion saying provisional ballots could not be given to people who lacked ID. The ballots were created by HAVA to ensure that people who are not on voter rolls could vote, though registrations of those voters must be verified before counting the ballots. The section also said it was okay to cast but not count provisional ballots.
· Tried to pressure the Election Assistance Commission to change its decision on Arizona's voter ID law, which requires residents to provide proof of U.S. citizenship when registering to vote. Arizona wanted the EAC to add the citizenship requirement to a national voter registration form. The EAC did not grant Arizona's request, despite supporting emails from Von Spakofsky.
-Filed the first of a half-dozen lawsuits forcing states to purge voter rolls. Only Missouri fought the suit, which it later won, though the Justice Department is appealing that ruling. U.S. District Court Judge Nanette K. Laughrey wrote in her decision that, "It is ... telling that the United States has not shown that any Missouri resident was denied his or her right to vote as a result of the deficiencies alleged by the United States. Nor has the United States shown that any voter fraud has occurred." New Jersey, Indiana, and Maine were also sued by the Department and reached consent decrees -- settlements -- that included voter purges.
These actions were all part of a growing crescendo of enforcement actions with political overtones leading up to the 2006 election.
Turning toward 2008
As the country approaches the 2008 election, it is an open question how the GOP's ballot security strategies will affect voting in the battleground states. As in any election, there are a handful of unknowns that could have a major impact. The Supreme Court, for example, will decide whether Indiana's voter ID law, seen as one of the country's toughest, places an unconstitutional burden on low-income people and minority voters. Meanwhile, in states where immigration is a hot-button issue, Arizona's efforts to add a proof of citizenship requirement to the national voter registration form will be closely watched. Under that state's Proposition 200, which passed in 2004, residents must show proof of citizenship before registering to vote or receiving public assistance. Maricopa County, where Phoenix is located, is now rejecting 30 percent of all new registrations due to inadequate proof of citizenship, according to Jeff Blum of USAction. Since Proposition 200 was implemented in 2005, more than 32,000 voter registrations have been rejected. Meanwhile, in January 2008, the Texas Legislature began consideration of a new voter ID law.
Similarly, efforts by states to comply with HAVA by creating statewide voter lists pose an entirely new set of election administration issues. Since 2000, most states have been struggling to transition to a new generation of electronic voting systems. These paperless systems have been criticized for being unreliable, potentially inaccurate, and accessible to hackers. While some states have moved to restrict the use of these machines, the creation of statewide voter databases -- a part of these systems -- has not been as widely scrutinized. In some states, officials have instituted strict name-matching requirements to verify the accuracy of voter registrations. Whether typos or other data entry errors will mistakenly remove legal voters -- as was the case in California in 2005 -- remains to be seen, although Florida recently joined a handful of states, including Washington, where litigation rolled back strict name-matching standards that were disenfranchising legal voters.
Another large unknown concerns voter purges. In April 2007, the Justice Department sent letters to the top election administrators in ten states -- Iowa, Massachusetts, Mississippi, Nebraska, North Carolina, Rhode Island, South Dakota, Texas, Utah and Vermont -- to pressure them to purge their voter rolls. Former Voting Section attorneys and others said the statistics cited by the Justice Department in the purge letter were flawed and did not confirm that those states had more voter registrations than eligible voters, as the department alleged. "That data does not say what they purport it says," said David Becker, senior voting rights counsel for People for the American Way and a former Voting Section senior trial attorney, after reviewing the data cited in the Justice Department's letter. "This stuff disenfranchises voters .... There are eligible voters who will be removed. There is no evidence that rolls need to be cleaned up to this degree. This will make things more chaotic on Election Day. People will be given provisional ballots that won't get counted."
Looking toward the 2008 election, it appears the purges -- as well as the new voter ID laws, restrictions on registration drives and stricter rules for counting provisional ballots -- could be a new and legal way to accomplish a longstanding GOP electoral tactic: thinning the ranks of likely Democratic voters. In numerous elections dating back to the 1960s, the Republican Party has tried to challenge new voter registrations to accomplish this goal, although since 1981 federal courts have blocked some of those efforts as illegal electioneering.
"Until the mid-1960s, the political entity most closely associated with efforts to disenfranchise people of color was the southern wing of the Democratic Party," wrote Rice University Sociology Professor Chandler Davidson and several graduate students in a paper titled, "Republican Ballot Security Programs: Vote Protection or Minority Voter Suppression -- Or Both?" However, the passage of civil rights laws in the early 1960s prompted some Republicans to appeal to southern Democrats who supported the Jim Crow system. Part of that political sea change was that the Republican Party adopted some of the voter suppression tactics used by southern Democrats. Indeed, the debate and remedies framed by the GOP's contemporary "voter fraud" activists comes from this same political lineage:
"There are several noteworthy characteristics of these programs. They focus on minority precincts almost exclusively. There is often only the flimsiest evidence that voter fraud is likely to be perpetrated in such precincts.
In addition to encouraging the presence of sometimes intimidating Republican poll watchers or challengers who may slow down voting lines and embarrass potential voters by asking them humiliating questions, these programs have sometimes posted people in official-looking uniforms with badges and side arms who question voters about their citizenship or their registration. In addition, warning signs may be posted near the polls, or radio ads may be targeted to minority listeners containing dire threats of prison terms for people who are not properly registered -- messages that seem designed to put minority voters on the defensive."
Will this history of vote suppression tactics repeat itself during the 2008 presidential election? While the Democrats are not saints when it comes to voter suppression -- recall how John Kerry's supporters disqualified signatories to Ralph Nader's presidential petitions in 2004 -- they do not have the same kind of vote suppression apparatus in place as the Republicans do. Indeed, it appears that Republicans are already following Chandler Davidson's inventory by seeking to regulate the voting process well before the 2008 election. The tactics that can be implemented well before the voting begins -- stricter voter ID laws, voter purges, registration drive curbs, tougher provisional ballot laws and easing rulefor voter challenges -- are already underway in several states.
Steven Rosenfeld is a senior fellow at Alternet.org and co-author of "What Happened in Ohio: A Documentary Record of Theft and Fraud in the 2004 Election," with Bob Fitrakis and Harvey Wasserman (The New Press, 2006).
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