Exorcising the voter fraud ghost
When it comes to the fight about voter fraud and voter suppression, how do you prove a negative?
One key question in the battle over the legality of voter identification laws is whether such laws are necessary to prevent voter fraud and whether they suppress a lot of votes from eligible voters.
Though the answer to the second question remains in considerable dispute, after Tuesday’s federal court decision striking down Wisconsin’s voter ID law, it is time for voter ID supporters to throw in the towel and admit state voter ID laws don’t prevent the kind of fraud they are supposedly targeted for.
Federal Judge Lynn Adelman looked at the evidence from Wisconsin and reached a conclusion unsurprising to those of us who study how elections are run. “Virtually no voter impersonation occurs in Wisconsin,” Adelman wrote, “and it is exceedingly unlikely that voter impersonation will become a problem in Wisconsin in the foreseeable future.”
Wisconsin is not alone in lacking such evidence. When the United States Supreme Court considered the constitutionality of Indiana’s voter ID law in 2008, the state conceded there was no evidence, ever, of impersonation fraud in the entire state.
This is not surprising. Voter impersonation fraud is an exceedingly dumb way to try to steal an election. Someone would have to send people into polling places claiming to be others — either dead voters who have not been removed from the rolls, or people who have not yet shown up to vote, or fictitious people pre-registered and getting by any identification requirements when registering. Then the fraudster would have to hope that these imposters vote the way they were paid to. The fraudster would have to do this in large enough numbers to affect the outcome of an election, while avoiding detection of this conspiracy.
A far smarter way to steal an election is through the sale of absentee ballots. That transaction can be done in private. The person buying the ballots can buy blank ones from cheating voters, then cast the votes herself. These ballots can be cast simply by mailing them.
In researching my book The Voting Wars, I could not find one case since at least 1980 in which voter impersonation fraud was used to arguably steal an election.
True, Hans von Spakovsky made allegations about such events happening in the 1970s in Brooklyn. But his claims this is emblematic of a current problem have been debunked. Nor have other members of the “fraudulent fraud squad” produced credible evidence of any recent problem with such fraud tricking election officials.
In contrast, it is easy to find cases throughout the country every year of fraud or attempted fraud with absentee ballots. Voter ID laws do nothing to prevent absentee ballot fraud.
President Barack Obama recently gave a speech saying voter fraud is rare. He discussed a News21 study that found only 10 reported prosecutions for impersonation fraud across the country from 2000 to 2012. Robert Popper, a Judicial Watch attorney, argued this week in a Wall Street Journal op-ed article that the News21 report was unreliable because, among other reasons, the data were incomplete.
Popper misses the forest for the trees, however. No doubt, 10 cases of impersonation undercounts the total number of instances of such fraud. But what’s crucial are the comparative statistics. In the same 2000 to 2012 period, the News21 study found 491 absentee ballot prosecutions. And though the 10 cases of impersonation fraud all appeared unrelated and not part of any larger plot to steal an election, some of the absentee prosecutions indeed involved attempts to alter election outcomes.
Relative to absentee ballot fraud, impersonation fraud is a blip on the radar. In the Supreme Court’s case about Indiana’s law, Justice John Paul Stevens had to reach back to Boss Tweed in 1868 New York and a one possible case of impersonation fraud in 2004 in Washington state to bolster the argument that there is still potential for such fraud that could justify state ID laws.
At some point, honest observers just have to admit that impersonation fraud is not a serious problem in the United States. Many suspect (as do I) that these laws — passed almost exclusively by Republican state legislatures — are part of an attempt to make it harder to cast a ballot for voters who skew Democratic.
Judge Richard Posner, of the United States Court of Appeals for the Seventh Circuit, recently conceded he may have erred when he wrote an opinion upholding Indiana’s voter ID law. “I plead guilty,” Posner wrote, “to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana’s requirement that prospective voters prove their identity with a photo ID — a law now widely regarded as a means of voter suppression rather than fraud prevention.”
For this reason, many supporters of state voter identification laws have now shifted tactics to argue that the laws are necessary to promote voter confidence in the electoral process. If voters are worried their votes will be stolen, their argument goes, maybe they won’t vote.
Adelman, who wrote the Wisconsin case, did not think much of that argument either. He noted academic studies show no relationship between voter confidence and the presence or absence of an ID law. In addition, the judge noted it is the fear-mongering over such laws that might matter the most: “Perhaps the reason why photo ID requirements have no effect on confidence or trust in the electoral process is that such laws undermine the public’s confidence in the electoral process as much as they promote it.”
Now it is another question whether voter ID laws actually suppress as many votes as Democrats claim. I have been skeptical of such claims in the past, because in many instances challengers to voter identification laws have not been able to produce eligible voters who lack the necessary identification and could not easily get it.
But as states have further restricted the types of identification required to cast a ballot, these voters have been far easier to find. In the Wisconsin case, the judge looked closely at the evidence and determined that up to 300,000 people lacked the identification demanded — and many of them would have trouble getting it. Similarly, a state court judge in Pennsylvania recently determined that 320,000 to 400,000 people in that state lacked the requisite ID and the state was not well prepared to get “free” IDs into the hands of everyone who wanted it.
We will see if these numbers hold up in further appellate review of these cases. But even if the numbers of disenfranchised voters are just a fraction of these numbers, you have to ask: Why make voters face extra hurdles to voting for no legitimate reason?
Top: A poll worker looks at voter authorization forms and provisional ballots after the polls closed at the Covenant Presbyterian Church during the U.S. presidential election in Charlotte, North Carolina, November 6, 2012. REUTERS/Chris Keane
Middle: Voters stand in line to cast their ballots for the U.S. presidential elections at a polling place in the Richmond Public Library in Richmond, Virginia, November 6, 2012. REUTERS/Jonathan Erns