By Steven Rosenfeld, Ig Publishing
Posted on April 15, 2008, Printed on April 15, 2008
http://www.alternet.org/story/82348/
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).
© 2008 Ig Publishing All rights reserved.
View this story online at: http://www.alternet.org/story/82348/