Trump claims Florida voters wore disguises, latest in
pattern of conspiracy theories
John Fritze, USA TODAY
Published 6:00 a.m. ET Nov. 15, 2018 | Updated 6:29 p.m. ET Nov. 15, 2018
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WASHINGTON
Like most unsubstantiated
leveled
President Donald Trump, his
allegations of fraud
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in the high-stakes recount in Florida’s Senate and gubernatorial elections started with a tweet.
gps-source=BENB999
Shortly after polls closed on last week's midterm election, the president warned of a “big corruption scandal” in
Florida as officials struggled to tally votes in Broward County. Days later, he referenced “massively infected”
ballots and accused Democrats of trying to “falsify” his 2016 win in the Sunshine State, without citing evidence.
(Photo: Saul Loeb, AFP/Getty
Images)
Trump went further Wednesday, suggesting that voters were using disguises to cast multiple ballots.
“When people get in line that have absolutely no right to vote and they go around in circles," Trump told the Daily Caller in an interview. "Sometimes they
go to their car, put on a different hat, put on a different shirt, come in and vote again. Nobody takes anything. It’s really a disgrace what’s going on.”
He also suggested there was rampant voter fraud because of what he described as a lax approach to verifying identification.
“If you buy a box of cereal – you have a voter ID,” Trump said.
The assertions were only the latest conspiracy theory embraced by Trump over the Florida gubernatorial and Senate elections as election officials raced
to tally votes (/story/news/politics/2018/11/10/donald-trump-accuses-democrats-trying-steal-florida-elections/1957842002/).
The machine recount of some 8 million votes cast in the races ended at 3 p.m. Eastern Standard Time Thursday after a federal judge in Florida declined
a request (/story/news/politics/elections/2018/11/15/florida-recount-rick-scott-bill-nelson/2013609002/) by Incumbent Democratic Sen. Bill Nelson and his
allies to push the deadline back so more votes could be counted. Nelson is trailing Republican Rick Scott by about 13,000 votes.
Experts who study the use of conspiracy theories in politics say the ongoing recounts in Florida have all the preconditions needed to fuel Trump’s
decades-old penchant for embracing claims of subterfuge. The outcome is uncertain, the drama is high and the complexity of the issue makes it hard for
voters to separate fact from fiction.
“It fits the pattern of everything he’s done so far,” said Joseph Uscinski, a political scientist at the University of Miami who has written on the issue. “The
underlying message of all of Trump’s conspiracy theories is that the ‘elites’ sold out the interests of the American people.”
Trump’s use of conspiracy theories to rile up voters and shift the media’s attention is by now a well-known element of his communications strategy. He
gained national prominence by questioning the citizenship of President Barack Obama. During his 2016 campaign he accused Texas Sen. Ted Cruz’s
father of associating with President John F. Kennedy’s assassin (/story/news/politics/onpolitics/2016/05/03/trump-bizarrely-links-cruzs-father-jfk-assassincruz-goes-ballistic/83874972/). He flirted with the notion that Supreme Court Justice Antonin Scalia, who died in his sleep in early 2016, may have been
murdered.
All of those claims were baseless.
Donald J. Trump
@realDonaldTrump
When will Bill Nelson concede in Florida? The characters
running Broward and Palm Beach voting will not be able to “find”
enough votes, too much spotlight on them now!
101K 11:32 AM - Nov 13, 2018
45.8K people are talking about this
After winning the election, Trump explained his second-place finish in the popular vote by claiming millions of illegal ballots were cast for Democrat Hillary
Clinton. Trump appointed a commission to investigate voter fraud, which never presented formal findings nor evidence to support his claim.
(/story/news/politics/2018/08/04/donald-trumps-widespread-voter-fraud-claim-untrue-election-official/905262002/)Trump disbanded the group in January
(/story/news/politics/2018/08/04/donald-trumps-widespread-voter-fraud-claim-untrue-election-official/905262002/).
In the run-up to the midterm, Trump said that a caravan of Central Americans inching through Mexico toward the U.S. border included criminals and
"unknown Middle Easterners." His administration never backed up the claim.
In theorizing about the razor-thin margin in the Florida governor and Senate races, Trump is returning to an issue – and a state – that has befuddled
many Americans since the contested 2000 presidential race between Republican George W. Bush and Democrat Al Gore. The election was decided by
the Supreme Court after a recount in Florida.
Election officials were once again racing to wrap up a statewide recount amid a flurry of lawsuits filed by candidates from both parties.
An email reviewed by the USA TODAY NETWORK showed a Democratic party leader in Florida encouraged volunteers to send altered election forms to
voters (/story/news/politics/elections/2018/11/15/florida-recount-democrats-launch-plan-altered-state-form-fix-ballots/2016030002/) in an effort to fix ballot
signature problems. Though it’s not clear that any of those requests were accepted, election experts said the revelation is likely to raise new questions
about the vote-counting process.
More: Email shows Florida Democratic official sought to use altered forms for reaching voters with ballot problems
(/story/news/politics/elections/2018/11/15/florida-recount-democrats-launch-plan-altered-state-form-fix-ballots/2016030002/)
Initial results put Scott ahead of Nelson in the state’s Senate race and indicated Republican Ron DeSantis had a healthy lead over Democrat Andrew
Gillum in the state’s contest for governor. Those margins have shrunk, however, as election officials count outstanding ballots.
Trump and other Republicans have zeroed in on Broward County, which has struggled to meet state-imposed deadlines to post up-to-the-hour tallies of
the count. They also point to a ruling against Broward County Supervisor of Elections Brenda Snipes that found she violated state law by destroying
ballots too quickly after the 2016 election.
“When they call this woman incompetent, they’re wrong,” Trump told The Daily Caller. “She’s very competent but in a bad way.”
Though the issues Trump and others have raised have sparked bipartisan concern, there is no evidence Snipes or other officials are tampering with the
outcome of the election. Democrats have suggested the problems have more to do with outdated voting machines and underfunded election offices.
Experts said the Florida recount is fertile ground for conspiracy theorists.
It’s “a perfect situation on which such theories can rest,” said Joanne Miller, a political scientist at the University of Delaware who has studied the issue.
High uncertainty and high anxiety, she said, are among the factors that can cause people to believe unsubstantiated claims.
“There's also another aspect of elections that makes them ripe for conspiracy theories: The inherent competition surrounding an election, and therefore
the stakes of the outcome, are high,” Miller said.
“It's more self-esteem protective to believe that an election outcome was due to fraud than to believe, for example, that it was due to the fact that the
other party had policy positions that resonated better,” she said.
Trump, of course, is not the first president or high-profile figure to hold such theories. Then-first lady Hillary Clinton referred to what she described as a
“vast, right-wing conspiracy” to explain the impeachment of her husband, President Bill Clinton, in 1998.
President Richard Nixon harbored theories that Washington insiders were out to end his presidency.
But Trump is unusual in his embrace of conspiracies and his desire to share them with supporters, experts said. Both the frequency and the extent of the
claims Trump makes without offering evidence make him unique in his use of them, they said.
Those who have studied the president for years – including before his political debut – note that his approach, even in business, is to keep foes and
friends alike off kilter and uncertain of his motives.
“He’s a salesman,” said Gwenda Blair, a Trump biographer. “The only way it works is if people keep watching.”
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I'm a former Florida congressman and my vote was
rejected over a signature 'mismatch'
Patrick Murphy, Opinion contributor
Published 4:19 p.m. ET Nov. 9, 2018 | Updated 4:57 p.m. ET Nov. 9, 2018
Voter suppression can happen to anyone, even a former US House member like me. It's against our ideals to
sideline people who want their voices heard.
The hallmark of every true democracy is fair, free and accurate elections. It's what separates us from the
dictatorships and totalitarian regimes of other countries. The American people have faith that when they head
to the polls to cast a ballot, that vote will be properly accepted and counted.
The state of Florida is no stranger to close elections. We are still ridiculed in political circles for the debacle
following the 2000 presidential election in which Al Gore and George W. Bush battled over hanging chads and
(Photo: Susan Stocker, South
Florida Sun-Sentinel, via AP)
butterfly ballots all the way to the Supreme Court (https://www.oyez.org/cases/2000/00-949). In my very own
election to Congress in 2012, it took ballot retabulations and weeks of legal wrangling before I was declared the
victor by just over 2,000 votes (https://ballotpedia.org/Patrick_Murphy_(Florida)) — a slim 0.6% margin.
And now Florida voters are faced with recounts for three statewide races that are each separated by less than half of a percent — governor
(https://floridaelectionwatch.gov/StateOffices/Governor), senator (https://floridaelectionwatch.gov/FederalOffices/USSenator) and closest of
all, agriculture commissioner (https://floridaelectionwatch.gov/StateOffices/CommissionerOfAgriculture), in which the margin between the candidates is in
the hundredths of a percent. If it wasn't obvious already, it should be crystal clear that every vote counts.
Except mine didn't.
My absentee ballot was declared invalid over my signature
After it became clear that several races were too close to call on Tuesday, I decided to check my absentee ballot status on the Palm Beach County
elections website – only to find that my ballot had been rejected because of an "invalid signature" mismatch. I've been a registered voter for over 15
years, and an active Palm Beach County voter for six, and yet that wasn't enough to get my ballot added to the official tally.
Voters who get notice in time can sign and return an affidavit (https://dos.myflorida.com/elections/for-voters/voting/vote-by-mail/) that has to be received
by 5 p.m. the day before the election. But my vote wasn't actually logged until Election Day, according to the Palm Beach elections website. There is no
remedy to my situation after the fact, so unless that's changed by the county canvassing board or a legal challenge (https://www.tampabay.com/floridapolitics/buzz/2018/11/09/bill-nelson-files-lawsuit-challenging-floridas-election-signature-match-law-amid-senate-recount/) filed by Sen. Bill Nelson, the
judgment call made by an unelected county employee to reject my vote will stand.
More: Make voting easier for everybody, not tougher (/story/opinion/2018/11/06/election-day-make-voting-easier-not-tougher-editorialsdebates/1909802002/)
Republicans are rigging elections to win. They're anti-voter and anti-democracy. (/story/opinion/2018/10/25/republicans-suppress-votes-rig-electionsattack-democracy-midterms-column/1722188002/)
African-Americans fought, bled and died so we could vote. Shame on us if we don't (/story/opinion/nation-now/2018/11/05/elections-2018-they-foughtbled-and-died-so-we-could-vote-column/1894625002/)
I wonder, how many others across the state has this "mismatch" scenario affected without their knowledge? Would the single parent working two jobs or
the snowbird heading out of town to see family for the holidays see this notice in time to make the correction? For races being decided in the hundreds of
votes out of more than 8 million cast, the decision to summarily reject a validly cast ballot is unfathomable.
We must work to reform this system — now.
GET THE NEWS
Just this week we made great strides in expanding the right to vote in another important way. Nearly 65%
(https://floridaelectionwatch.gov/Amendments)of Floridians chose to extend the franchise to ex-felons who have paid their debt to society. It is refreshing
that after President Donald Trump tried to suppress the vote with a nonsensical voter fraud commission (https://www.brennancenter.org/issues/trumpfraud-commission), Florida voters from across the political spectrum chose to veer in the opposite direction and encourage more people to participate in
the political process.
Treat voting as the most sacred right of all
But in other ways our system — not just in Florida, but across the nation — continues to actively discourage voting. Polling places are shuttered at
college campuses purely for political reasons. Early vote centers are underfunded and understaffed to the point where lines are hours long, snaking
around city blocks. And voters are often purged from the rolls for missing an election or having minor errors in the spellings of their names or addresses.
This is completely antithetical to the democratic ideals that we, as a nation, have fought for.
My vote on Nov. 6 may not end up being counted. But we have too much at stake at this time in our nation's history — from the threat of climate change
to the disappearing middle class to the scourge of gun violence — to unfairly push people to the sidelines who want their voices heard. It is imperative
that we treat the right to vote as the most sacred right of all.
Democrat Patrick Murphy represented Florida's 18th Congressional District from 2013 to 2017. Follow him on Twitter: @PatrickMurphyFL
(https://twitter.com/PatrickMurphyFL)
You can read diverse opinions from our Board of Contributors
(http://usatoday.com/reporters/boc.html) and other writers on the Opinion front page
(http://usatoday.com/opinion/), on Twitter @usatodayopinion
(https://twitter.com/usatodayopinion) and in our daily Opinion newsletter
(https://profile.usatoday.com/newsletters/opinion/). To respond to a column, submit a
comment to letters@usatoday.com.
Read or Share this story: https://www.usatoday.com/story/opinion/2018/11/09/florida-rejected-my-vote-signature-mismatch-former-congressmancolumn/1945081002/
https://nyti.ms/3eajXhG
Mail Carrier in West Virginia Pleads Guilty to
Attempted Election Fraud
Five mail-in ballot requests were altered from Democrat to Republican, federal
prosecutors in West Virginia said.
By Azi Paybarah
Published July 9, 2020
Updated July 11, 2020
Talk of election fraud may conjure images of high-tech operations, ones that rely
on hacked emails and a network of fake social media accounts.
A recent case in West Virginia, however, was decidedly less sophisticated.
According to federal prosecutors, it involved just one mail carrier and a little bit
of black ink.
The mail carrier, Thomas Cooper, 47, of Dry Fork, W.Va., pleaded guilty on
Thursday to one count of attempted election fraud and one count of “injury to the
mail,” according to a statement from the U.S. Attorney’s Office in the Northern
District of West Virginia.
Prosecutors said that Mr. Cooper admitted to altering eight primary ballot
request forms with black ink. On five of those forms, the political party was
changed from Democrat to Republican, officials said, and they would have
resulted in Democratic voters receiving ballots featuring Republican primary
candidates.
The clerk of Pendleton County spotted the alterations in April and contacted
state officials, spurring an investigation, prosecutors said.
An investigator with the state attorney general’s office spoke with the voters,
who confirmed that their ballot requests had been altered, according to an
affidavit filed with the court.
Eventually, that investigator and a U.S. postal inspector questioned Mr. Cooper,
who, according to the affidavit, held a U.S. Postal Service contract to deliver mail
in the three towns where the eight voters reside: Onego, Riverton and Franklin.
The alterations looked obvious and affected only a tiny fraction of the state’s
more than one million voters. At one point in the interview, Mr. Cooper was
asked if he was “just being silly” when he altered the ballot requests. According
to the affidavit, he replied, “Yeah” and said that he did it “as a joke.”
Efforts to reach Mr. Cooper by phone and email on Thursday night were not
successful. He will be sentenced at a later date, according to local news reports.
To encourage voters to use mail-in voting during the coronavirus pandemic,
absentee ballot applications were mailed to all registered voters in West Virginia
in advance of their primary election on June 9.
+(,121/,1(
Citation: 9 Tex. Rev. L. & Pol. 277 2004-2005
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Copyright Information
SECURING THE INTEGRITY OF AMERICAN ELECTIONS:
THE NEED FOR CHANGE
PUBLIUS"
I.
INTRODUCTION ...............................................................
278
II.
PROVISIONAL VOTING .....................................................
282
III.
IDENTIFICATION REQUIREMENT ......................................
287
IV.
CITIZENSHIP OF VOTERS ..................................................
292
V.
STATEWIDE VOTER REGISTRATION LISTS
AND THE NVRA ...............................................................
VI.
297
STATE AND FEDERAL LEGISLATIVE
RECOMMENDATIONS .......................................................
299
* Publius is an attorney who specializes in election issues. The opinions expressed
here are the attorney's own and not that of the attorney's employer.
Texas Review of Law & Politics
Vol. 9
I. INTRODUCTION
It is unfortunately true that in the great democracy in which
we live, voter fraud has had a long and studied role in our
elections. Maintaining the security of our voter registration and
voting process, while at the same time protecting the voting
rights of individuals and guaranteeing their access to the polls,
must be our foremost objective. Unlike what certain advocates in
the civil rights community believe, these goals are not mutually
exclusive. Every vote that is stolen through fraud disenfranchises
a voter who has cast a legitimate ballot in the same way that an
individual who is eligible to vote is disenfranchised when he is
kept out of a poll or is somehow otherwise prevented from
casting a ballot. In other words, violations of criminal election
crimes statutes are just as important as violations of federal
voting rights statutes and both cause equal damage to our
democracy.
Most importantly, putting security measures in place-such as
requiring identification when voting-does not disenfranchise
voters and there is no evidence to suggest otherwise. In fact, the
most recent election in 2004, with its record turnout and
increases in voter registration, shows that such identification
requirements have no effect on turnout at all. The other
problems encountered in this and prior elections, particularly
the large number of fraudulent voter registration forms turned
in to election officials by some third-party organizations engaged
in voter registration drives, show the need to make further
changes in federal and state law that will safeguard our elections
and our right to vote.'
The stealing of elections happens from the local level, such as
in the mayor's race in Miami in 1997, to congressional races,
1. See Employment Policies Institute, The Real ACORN. Anti-Employee, Anti-Union, Big
Business (May 2003), available at http://www.EPIonline.org/studies/epi-acorn_052003.pdf (a description of one organization's pattern of turning in false registration
forms). See also Robert Patrick, Jury finds Montgomey guilty in vote fraud case, ST. LOUIS
POST-DISPATCH, Feb. 10, 2005, at BI (thousands of fraudulent voter registration forms
were turned in by an organization called Operation Big Vote); Juliet Williams, Federal
investigatorsjoin probe into Milwaukee voting problems, DULUTH NEWS TRIB., Feb. 16, 2005
(city voting records showed that more than 1,200 people voted from invalid addresses);
'Mary Poppins' admits phony voter registrations, STAR TRIBUNE, Feb. 19, 2005; Mark
Brunswick, Voter card stash brings guilty plea, STAR TRIBUNE, Dec. 7, 2004, at 8B.
No. 2
The Integrity of American Elections
279
such as Lyndon B. Johnson's famed theft of his 1948 U.S. Senate
Democratic primary with Ballot Box 13, to the 1960 presidential
race with Mayor Daley's long-rumored stuffing of ballots in
Chicago on behalf ofJohn Kennedy. Information about some of
the better known incidents is documented by Larry Sabato and
Glenn Simpson in "Dirty Little Secrets: The Persistence of
Corruption in American Politics"'2 and byJohn Fund in "Stealing
Elections: How Voter Fraud Threatens Our Democracy."' In
1984, a special federal grand jury in the Northern District of
Illinois investigated the 1982 general election in Illinois and
concluded that 100,000 fraudulent votes had been cast.4 Its
public report provides a textbook guide to how voter fraud is
committed. It details false registration, fraudulent use of
absentee ballots, vote buying, and altering of the vote count. In
that case alone, fifty-eight precinct captains, election judges, poll
watchers, and political party workers were convicted in the
largest vote fraud case ever prosecuted by the United States
Department of Justice.5 The grand jury concluded "that similar
fraudulent activities" had occurred prior to 1982.'
Most cases of voter fraud are prosecuted by state authorities,
but anyone interested in looking at the scope of the problem,
which most liberal advocacy groups wrongly insist is almost
nonexistent and exaggerated,7 need only look at the many cases
2. LARRYJ. SABATO & GLENN R. SIMPSON, DIRTY LITrLE SECRETS: THE PERSISTENCE OF
CORRUPTION IN AMERICAN POLITICS (1996).
3. JOHN FUND, STEALING ELECTIONS: How VOTER FRAUD THREATENS OUR
DEMOCRACY (2004).
4. See Northern District of Illinois, Eastern Division Special Grand Jury Report, No.
82 GJ 1909, Dec. 14, 1984. What is clear from reading the grand jury report and some of
the reported cases on these convictions is that the election officials learned these
techniques from their predecessors and that there was a long tradition of these types of
practices in Chicago. See also Mark Eissman, U.S. to Probe Primary: Vote Fraud Federal Laws
May Have Been Broken, CHI. TRIB., Mar. 11, 1987, at IC. A detailed account of extensive
voter fraud in Miami is contained in the Miami-Dade County Grand Jury, Interim
Report, Inquiry into Absentee Ballot Voting, Feb. 2, 1998. In 1984, Brooklyn District Attorney
Elizabeth Holtzman disclosed the results of another grand jury investigation that found
"serious and repeated fraud in primary elections held in Brooklyn" for fourteen years,
including the use of fictitious names to create large numbers of voter registration cards
that were then used to cast fraudulent votes. Press Release, Brooklyn, New York District
Attorney's Office, D.A. Holtzman Announces Grand Jury Report Disclosing Systematic
Voting Fraud in Brooklyn (Sept. 5, 1984).
5. Id.
6. Id.
7. See, e.g., Lori Minnite & David Callahan, Securing the Vote: An Analysis of Election
Fraud, Demos, 2003, available at http://www.demos-usa.org/pubs/EDR-Securingthe_
Vote.pdf. The problem with this report is that it does not recognize that so many security
holes exist in our current voter registration and election process, and that is it very hard
Texas Review of Law & Politics
Vol. 9
prosecuted under the federal statutes prohibiting various
election crimes such as vote buying and providing false
information to register and vote, which are violations of 42
U.S.C. § 1973i(c). There are numerous reported cases listed
after these statutes in an annotated volume of the United States
Code.' While it may be true that most elections are conducted
without being affected by voter fraud, the many past (and
ongoing) prosecutions make it clear that voter fraud is a
continuing problem.
The fastest and most uniform way of making needed changes
in election administration would be to amend the Help America
Vote Act of 2002 ("HAVA"). 9 HAVA was signed into law by
President Bush on October 29, 2002, and was the first statute
passed by Congress affecting federal elections since the passage
of the National Voter Registration Act in 1993 ("NVRA")."'
HAVA's provisions were intended to correct the perceived
problems with the conduct of the 2000 presidential election.
Organizations involved in election administration such as the
National Association of Secretaries of State ("NASS") and the
National Association of State Election Directors formed task
forces that made various recommendations for reforming the
election process.
The final bill was full of compromises between Republicans
and Democrats (and election officials and civil rights leaders)
who did not always agree on what needed to be fixed or how. In
some instances the provisions were so controversial that the bill
almost died, particularly the identification provisions that were
added at the behest of Senator Kit Bond of Missouri. Congress,
to detect voter fraud unless a victim or perpetrator bring it to the attention of
authorities. In the past, for example, election officials never verified any of the
information received on voter registration forms, resulting in an honor system for voter
registration. Many studies have shown numerous false names and even animals
registered to vote in jurisdictions all over the country. As another example, this study
asserts that "vigorous" signature matching is sufficient to prevent voter fraud with
balloting by mail. Any criminal prosecutor with experience in handwriting analysis
knows that it takes extensive training to do such analysis accurately, something that the
election clerks who conduct signature comparisons do not receive. Furthermore, if
someone sends in 100 false voter registration forms under different names, but signs
each form in their normal signature, a signature comparison of each absentee or mail-in
ballot with the original registration card will not result in any detection of the fraud
because the signatures will match.
8. See also, e.g., the many election cases under 42 U.S.C. § 241 (2005) (conspiracy
against rights).
9. 42 U.S.C. §§ 15301-15545 (2005).
10. See 42 U.S.C. § 1973gg (2005).
No. 2 *
The Integrity ofAmerican Elections
for the first time ever, also appropriated funding for election
administration for the states to help them comply with HAVA.
Administering elections is probably the oldest unfunded
mandate in the history of the federal government since federal
elections have always been run by mostly county (and in some
states like Michigan) even municipal governments. As of
February 9, 2005, however, the new Election Assistance
Commission had distributed more than $2.2 billion to the states
to help them meet HAVA's requirements." These requirements
for federal elections apply to all fifty states, American Samoa, the
District of Columbia, Guam, Puerto Rico, and the U.S. Virgin
Islands. Most of them became effective during 2004 election
cycle.
HAVA presents an interesting contrast between federal and
state responsibilities. Federal mandates imposed in Title III
require the states to implement certain requirements for federal
elections, yet at the same time the statute leaves the "specific
choices on the methods of complying with the requirements" to
the states.' 2 HAVA created a new federal agency, the U.S.
Election Assistance Commission ("EAC"), to oversee the funding
to states and to provide guidance on the best methods for states
to implement these HAVA requirements. But the EAC's
guidance is only voluntary and states can completely disregard
it. Obviously fearing a new federal agency would take over
election administration through the regulatory process,
Congress prohibited the EAC from having "any authority to
issue any rule, promulgate any regulation, or take any other
action which imposes any requirement on any State or unit of
local government.' ' 3 However, the nation's secretaries of state,
who are the chief election official in nearly every state, are
obviously fearful of Congress amending HAVA to provide the
EAC with regulatory authority that would result in a federal
takeover of the states' authority to administer elections. NASS
11. Press Release, United States Election Assistance Commission, U.S. Election
Assistance Commission Reports to Congress on Election Reform Progress in 2004 (Feb.
9, 2005), available at http://www.eac.gov/news_020905.asp.
12. 42 U.S.C. § 15485 (2005). A copy of the statute and other information on its
requirements may be found on the U.S. Department of Justice's website at http://www.
usdoj.gov/crt/voting/hava/hava.html.
13. 42 U.S.C. § 15329 (2005). The only exception is for the regulations issued under
section 9(a) of the NVRA on the use of the federal mail-in voter registration form.
Responsibility for this form was transferred by HAVA from the Federal Election
Commission to the EAC. See 42 U.S.C. § 15531 (2005).
Texas Review of Law & Politics
Vol. 9
recently overwhelmingly passed a resolution4 calling on Congress
to dissolve the EAC after the 2006 election.
Under Title III of HAVA, states were required by 2004 to
implement provisional ballots, identification for new voters who
registered by mail, and statewide voter registration lists,
although the registration list requirement could be delayed until
2006. Changes were also made in the federal mail-in voter
registration form that all states are required to accept by the
NVRA. Before discussing what changes should be made to
HAVA or state election laws to improve the integrity of our
elections and to deter voter fraud, it is important to understand
these HAVA mandates and how they were implemented in 2004,
as well as the problems that exist in our election process.
Although HAVA only applies to federal elections,'5 HAVA's
requirements for federal elections are being applied by the
states to all elections due to the difficulty and expense of
applying separate registration and election procedures to local
versus federal elections.
II. PROVISIONAL VOTING
Section 15482(a) of HAVA requires states to implement
provisional balloting. If a voter appears at his polling place to
vote and his name is not on the list of registered voters or an
election official challenges his eligibility to vote, the voter has to
be given a provisional ballot as long as the voter declares that he
is registered and eligible to vote in the jurisdiction in which he
desires to vote. The provisional ballot is counted if election
officials are able to verify that the individual is a registered and
eligible voter under applicable state law. 6 The states were
required to establish a toll-free telephone number or website
where the voter could find out if his vote was counted or the
reason it was not.
14. Letter from Meredith Imwalle, Director of Communications, NASS, to Members
of Congress (Feb. 6, 2005), availableat http://www.nass.org/EAC%20Position%20Cover
%20Ltr.pdf. This is a legitimate concern given the content of some of the new bills
introduced in Congress to amend HAVA. See, e.g., S. 17, 109th Cong. § 15 (2005).
15. The preamble to the statute states that it is an Act "[t]o establish the Election
Assistance Commission to assist in the administration of Federal elections and to otherwise
provide assistance with administration of certain Federal election laws and programs, to
establish minimum election administration standards for States ... with responsibility for
the administration of Federal elections." Help America Vote Act of 2002, Pub. L. No. 107252 (codified as 42 U.S.C. §§ 15301 et seq. (2005)) (emphasis added).
16. 42 U.S.C. § 15482 (a).
No. 2
The Integrity of American Elections
Additionally, under HAVA voters who vote after the statutory
time for polls to close due to a court order extending that time
must vote by provisional ballot. 7 This is designed to avoid the
kinds of problems that occurred in St. Louis in the 2000 election
when Democrats convinced a lower court to extend polling
hours based on specious claims.' This allowed hundreds of
invalid ballots to be cast before the decision was overturned the
same evening by a higher court. The invalid ballots cast
disappeared into the anonymity of the ballot box before the
original court order could be overturned.' 9 As a result, the
ballots could not be separated from other ballots and were
counted in the election. This HAVA requirement essentially puts
a stop to this campaign tactic as evidenced by the very few times
it occurred in the November 2004 election.
The purpose of HAVA's provisional balloting requirement is
to allow an individual to vote who has duly registered as
required under state laws but whose name is not on the
registered voter list in the voter's precinct due to some type of
administrative error. An example is someone who registered to
vote when she renewed her driver's license but the state's motor
vehicle department did not send her voter registration form to
election officials. Contrary to the desires of some, this provision
was not meant to void state voter registration deadlines and to
institute election day registration or to force states to count the
provisional ballots of individuals who did not attempt to actually
register to vote, even if they would otherwise be eligible to vote if
they had registered.
HAVA's provisional balloting requirement was not intended
by Congress to preempt the long tradition of precinct-based
voting. However, the Democratic Party and its alter ego
organizations like the Association of Community Organizations
for Reform Now ("ACORN"), the NAACP, People for the
American Way, and the League of Women Voters, tried to use
17. 42 U.S.C. § 15482(c) (stating that such provisional ballots must also be "separated
and held apart from other provisional ballots" cast at the polling place).
18. It turned out that the lead plaintiff in the lawsuit, Robert D. Odum, who
supposedly had not been able to vote because of long-lines at polling locations, had been
dead since 1999. The Democrats then claimed the plaintiff was actually Robert M.
Odum, a staffer for Democrat Congressman William Clay; however, Mr. "M" Odum had
voted prior to the filing of the lawsuit. Beverly Lumpkin, Beverly Lumpkin: Halls of Justice
(Apr. 20, 2004), at http://abcnews.go.com/US/story?id=93445&page=l.
19. State ex rel. Bush-Cheney 2000, Inc. v. Baker, 34 S.W.3d 410 (Mo. Ct. App. 2000).
284
Texas Review of Law & Politics
Vol. 9
HAVA to do just that prior to the November 2, 2004 election. 0
They filed numerous lawsuits in battleground states, including
Michigan, Ohio, Florida, and Missouri. In these suits, the
plaintiffs mistakenly argued that 42 U.S.C. § 15482 of HAVA
invalidates state laws and required those states to count the
provisional ballots of voters that were cast outside of the
precincts where the voters would normally vote. Most of these
suits used 42 U.S.C. § 1983 to assert claims under HAVA as well
as making claims under the Equal Protection Clause of the
Fourteenth Amendment. It was an obvious effort to institute
"precinct-shopping" by using federal law to preempt state law
requirements.
Federal judges at the district court level issued opinions
dismissing the plaintiffs' claims in Florida and Missouri,
recognizing from the statutory language and the legislative
history that Congress had not intended to override traditional
precinct-based voting by the states when it passed HAVA; 21 the
plaintiffs won in the district courts in Michigan and Ohio in
poorly reasoned decisions that appear to be attempts by the
judges to legislate from the bench 2 Fortunately, the Sixth
Circuit Court of Appeals issued a decision just a week before the
election that overruled the Ohio decision, holding that HAVA
does not require a state to count a provisional ballot "if it is cast
outside the precinct in which the voter resides."2 3 The court did
confirm that if a voter declares that he is registered and eligible
to vote in the jurisdiction, the state must give him a provisional
ballot even if the election official is able to determine that the
voter is registered in a different precinct, but the ballot does not
have to be counted outside of his assigned precinct. In its
opinion, the court summarized succinctly the sound public
20. While these organizations are all independent of each other legally, the positions
they assert in election litigation are usually virtually identical.
21. Florida Democratic Party v. Hood, 342 F. Supp. 2d 1073 (N.D. Fla. 2004)
(holding that federal law does not invalidate the long-standing requirement in the State
of Florida that a voter must vote on election day only at the voter's assigned polling
place); Hawkins v. Blunt, No. 04-4177, U.S. Dist. LEXIS 21512 (W.D. Mo. Oct. 12, 2004).
22. Bay County Democratic Party v. Land, 347 F. Supp. 2d 404 (E.D. Mich. 2004);
Sandusky County Democratic Party v. Blackwell, 339 F. Supp. 2d 975 (N.D. Ohio 2004).
23. Sandusky County Democratic Party v. Blackwell, 386 F.3d 815 (6th Cir. 2004). A
full written opinion was issued three days later. Sandusky County Democratic Party v.
Blackwell, 387 F.3d 565 (6th Cir. 2004). Since Michigan is also in the Sixth Circuit, this
decision effectively overruled Bay County Democratic Party v. Land, 347 F. Supp. 2d 404
(E.D. Mich. 2004).
No. 2
The Integrity of American Elections
policy reasons behind the traditional precinct-based voting
process of the states:
[I]t caps the number of voters attempting to vote in the same
place on election day; it allows each precinct ballot to list all of
the votes a citizen may cast for all pertinent federal, state, and
local elections, referenda, initiatives, and levies; it allows each
precinct ballot to list only those votes a citizen may cast,
making ballots less confusing; it makes it easier for election
officials to monitor votes and prevent election fraud; and it
generally puts polling places in closer proximity to voter
residences. 4
Unfortunately, despite the lack of statutory language
2
authorizing a private right of action in HAVA ' and the clear
legislative history showing Congress's intent to the contrary, the
Sixth Circuit also recognized a private right of action under 42
U.S.C. § 1983, at least with respect to the right to cast a
26
provisional ballot. The court determined that the provisional
ballot requirement in 1HAVA is rights-creating language and that
individual enforcement under § 1983 is not precluded by the
explicit language of HAVA or by a comprehensive 27enforcement
enforcement.
scheme incompatible with individual
The problem with this decision is its failure to recognize that
the standards established by HAVA focus on the administration
of federal elections by state officials, not the individuals who may
benefit from the administration of well-run elections. The
provisional ballot requirements of § 15482 are all directed at
election officials, not individual voters, and it is a mistake to
read private remedies into a statute where Congress is regulating
an area of traditional state functions and when the statute itself
8
does not unambiguously provide for such remedies. In fact,
Congressional statements at the time of its passage show that
Congress did not intend to create a private right of action.
Democratic Senator Christopher Dodd of Connecticut, one of
the chief sponsors of HAVA and a member of the conference
committee, lamented that HAVA created no private remedy,
24. Blackwell, 387 F.3d at 569.
to
25. See 42 U.S.C. § 15511 (2005). Only the Attorney General is given authority
of
15481-15483
§§
U.S.C.
42
violating
jurisdiction
or
state
a
against
bring a civil action
HAVA. Id.
26. Blackwell 387 F.3d at 572.
27. Id. at 572-73.
28. See Gonzaga Univ. v. Doe, 536 U.S. 273, 286 n.5 (2002).
Texas Review of Law & Politics
Vol. 9
stating "[w]hile I would have preferred that we extend [a]
private right of action
, the House simply would not
entertain such an enforcement provision. 2 9
The Sixth Circuit also failed to recognize that Congress had,
in fact, crafted a comprehensive enforcement scheme that
ensured compliance with federal law while respecting traditional
state authority in running elections. While the Attorney General
was given the authority to seek enforcement in federal court, the
states were required to establish an administrative complaint
procedure for voters who met specified standards and provide
appropriate remedies for violations. ° Congress designed a
comprehensive dual state/federal enforcement scheme that was
deferential to the states' traditional role in administering
elections while providing for uniform national standards in
discrete areas by vesting enforcement authority in the Attorney
General. As the Attorney General said in an amicus curiae brief
filed in Sandusky:
Allowing individual voters to judicially enforce HAVA's
requirements would undermine each of these important
purposes. Indeed it is implausible to suppose that the same
Congress that sought to obtain uniformity, stability, and
certainty in voting procedures for federal elections
simultaneously intended to consign control over HAVA's
interpretation to thousands of federal and state court judges
and juries across the country. 1
What is clear from the statute, the legislative history, and these
decisions is that the conditions under which a provisional ballot
will be counted is a matter that Congress properly left up to the
states to determine. Twenty-eight states decided to only count
ballots cast in the correct precinct, while seventeen states
decided to count provisional ballots cast outside a voter's
residential precinct. 2 Neither the courts nor Congress should
29. 148 CONG. REC. S10488-02, S10512 (daily ed. Oct. 16, 2002). The Conference
Report confirmed that the enforcement provision only allowed for civil actions filed by
the Attorney General. H.R. CONF. REP. No. 107-730, at 76 (2002).
30. 42 U.S.C. § 15512 (2005).
31. "Brief of Amicus Curiae United States at 22-23, Sandusky County Democratic
Party v. Blackwell, 386 F.3d 815 (6th Cir. 2004) (No. 04-4265), available at http://www.
usdoj.gov/crt/voting/hava/oh-brief.pdf.
32. Electionline.org, The 2004 Election, Dec. 2004, at 5, available at http://
electionline.org/site/docs/pdf/ERIP%20Brief9%20Final.pdf. Other states offer election
day registration while North Dakota has no registration, obviating the need for
provisional ballots.
The Integrity of American Elections
No. 2
interfere with the states' prerogative to decide the circumstances
under which such ballots will be counted.
The provisional balloting process proved successful, with the
EAC reporting that one-and-one-half million provisional ballots
were cast and over one million were counted. However, the
effort to force states to count ballots not cast in the proper
precincts will no doubt continue with more lawsuits in the
future outside the ambit of the Sixth Circuit's jurisdiction.
III. IDENTIFICATION REQUIREMENT
Persons who register to vote by mail for the first time who
have not previously voted in a federal election in a state now
have to provide a copy of certain specified identification
documents when they register or show such identification the
first time they vote. The list of acceptable identification under
HAVA includes photo identification as well as a utility bill, a
bank statement, a paycheck, or a government document that
34
do
shows the name and address of the voter. Individuals who
ballot.5
provisional
a
cast
can
requirement
this
not comply with
An exception to the provision is provided to voters who are
entitled to vote under the Uniformed and Overseas Citizens
Absentee Voting Act36 and the Voting Accessibility for the
3v
Elderly and Handicapped Act. These requirements also do not
apply to a voter who supplies a driver's license number or the
last four digits of his social security number when registering if
election officials are able to match the registration with an
existing state identification record bearing the same number,
name, and date of birth as provided in the registration
application. 3
There are two problems with this identification requirement:
it applies to only a small percentage of the electorate, one made
even smaller by some states' interpretation, and the types of
documents that meet the identification requirements are too
broad. Under HAVA's statutory language, this identification
requirement applies only to an individual who "registered to
33.
34.
35.
36.
37.
38.
42 U.S.C.
42 U.S.C.
42 U.S.C.
42 U.S.C.
42 U.S.C.
42 U.S.C.
§ 15483(b) (2005).
§15483(b) (2) (A) (i) (II).
§15483(b) (2) (B) (ii).
§ 1973gg.4 (2005).
§ 1973ee-1 (b) (2) (B) (ii).
§15483(b) (3) (B) (ii).
Texas Review of Law & Politics
Vol. 9
vote in a jurisdiction by mail." 9 The point of this provision was
to require identification from individuals who use the federal
mail-in voter registration form that the NVRA requires states to
accept since no election official ever sees the individual
registrant or does any verification of the registrant's identity.
This rationale applies whether the individual actually uses the
mail to send back the complete form to election officials or the
form is personally delivered in a large batch by some third-party
organization that conducted a voter registration drive. In both
situations, no verification of any kind is conducted on the
identity and actual existence of the applicant.
Unfortunately, a number of states such as New Mexico
interpreted this provision to apply only to voter registration
forms actually received through the mail-if an individual or an
organization dropped it off, the identification requirement did
not apply. 40 And it was these third-party voter registration drives
that resulted in thousands of fraudulent voter registrations in
places like Florida and Georgia prior to the November election,
showing a clear need to apply such requirements to all
registrations using the mail-in form.4'
Proving or verifying the voter's identity should also apply
across the board to all voters when they register to vote and
when they vote at the polling place, not just to new voters. We
have had an honor system for too long in most states, with only
seventeen states requiring that all voters show identification
before voting.42
Furthermore, a photo identification should be required as
proof of identity. Anyone who has ever moved into a new house
or apartment and received bank statements and other
government documents (all of which would satisfy the HAVA
requirement) in the mail intended for the former occupants
knows how easy it is to obtain such documents. When combined
with the huge rise in identity theft, it is obvious that allowing
documents without photographs is not an acceptable security
39. 42 U.S.C. §15483(b) (1)(A).
40. Electiononline.org, Election Preview 2004: What's Changed, What Hasn't and Why,
Oct. 2004, at 45, available at http://www.electionline.org/site/docs/pdf/2OO4.Election.
Preview.Final.Report.Updatel.pdf [hereinafter Election Preview 2004].
41. Bill Cotterell, FDLE looks into vote fraud; Registration irregularitiesemerge across state,
TALLAIIASSEE DEMOCRAT, Oct. 22, 2004, at Al; Carlos Campos, Election 2004: bogus
voter
forms pop up in Fulton, ATLANTAJOURNAL-CONSTITUTION, Oct. 21, 2004, at Al.
42. Election Preview 2004, supra note 40, at 24.
No. 2
The Integrity of American Elections
measure for our voter registration and voting process. The
federal government has already imposed such a requirement for
rail and air travel because of its understanding of these
limitations. The same standards should be applied to voting.
Contrary to the argument raised by civil rights organizations
that such requirements will reduce voter turnout by minority
voters,43 there are no valid studies presenting any objective data
supporting such claims. The objections are merely anecdotal
and based on the unproven perception that minority groups
such as African-Americans do not posses identification
documents to the same degree as Caucasians (although there
are no claims that minorities do not have the same opportunity
to obtain such identification from state authorities). Although
driver's licenses are not the only form of photo identification
available (since many employers and universities now routinely
issue photo identification), it is useful to examine the available
statistics on driver's licenses. According to an Federal Election
Commission ("FEC") report covering the 1995-96 period,
"approximately 87% of persons 18 years and older have driver's
licenses while an additional 3% or 4% have, in lieu of a driver's
license, an identification card issued by the State motor vehicle
",44
agency.
More recently, in 2000, the Federal Highway Administration
reported that the number of licensed drivers age eighteen and
over is 186,797,586. 4' Since the total population of the United
States age eighteen and over according to the 2000 Census is
209,128,094, the percentage of the U.S. voting age population
with a driver's license is 89.32%.46 Using the FEC's 3% to 4%
figure for additional non-driver's license identification cards,
approximately 93% to 94% of the voting age population has, at
43. See, e.g., Robert Pear, Rights Groups Say Voter Bill Erects Hurdles, N.Y. TIMES, Oct. 7,
2002, at HI.
on
44. Fed. Elections Comm'n, The Impact of the National Voter Registration Act of 1993
the Administration of Elections for FederalOffice, at 5-6 (1995-96).
45. Fed. Highway Admin., Distribution of Licensed Drivers by Sex and Percentage in Each
Age Group and Relation to Population: 2000, tbl. DL-20 (Oct. 2001), availableat http://www.
fhwa.dot.gov/ohim/hsOO/dl20.htm. Neither the FEC nor the FHA has driver's license
statistics by race.
DP-1
46. U.S. Census Bureau, Profile of General Demographic Characteristics:2000, tbl.
(July 2002), available at http://www.census.gov/prod/2002pubs/c2kprofOO-us.pdf. If one
compares 2003 driver's license statistics to the Census Bureau's 2003 population
estimate, the voting age population with a driver's license rises to over 92%.
290
Texas Review of Law & Politics
Vol. 9
a minimum, photo identification documents issued by state
authorities.
claim
that identification
groups
further
Advocacy
requirements will adversely affect the elderly. However, a
surprisingly large number of individuals over the age of sixty-five
have driver's licenses. According to the Federal Highway
Administration, the number of older Americans who hold
47
is as follows:
driver's licenses as a percentage of their age group
Licensed Drivers as a Percentage of Age Group
Age
Lic. Drivers
65-69
90.1%
70-74
85.7%
75-79
81.4%
80-84
73.1%
Given these statistics, it is obvious that even elderly Americans
have driver's licenses with photo identification in large
numbers, without even taking into account the number of
passports, employer identification cards, and other such
documents.
A second objection is that voters will be intimidated by
identification requirements and therefore will not vote. The
2004 election certainly does not bear that out. For the first time,
voter identification requirements (although limited) were
applied nationwide because of HAVA. Yet turnout in the 2004
presidential election was 60.7% of those eligible to vote, the
highest turnout since 1968 when 61.9% voted.48 In fact, turnout
increased by 6.4%, or nearly seventeen million votes, from the
2000 election, the largest percentage point increase since the
47. Fed. Highway Admin., Distributionof Licensed Drivers by Sex and Percentage in Each
Age Group and Relation to Population: 2003 (Oct. 2004), availableat http://www.fhwa.dot.
gov/policy/ohim/hs03/pdf/dl20.pdf.
48. Committee for the Study of the American Electorate, Turnout Exceeds Optimistic
Predictions: More Than 122 Million Vote, Highest Turnout in 38 Years, Jan. 14, 2005, at 1,
available at http://election04.ssrc.org/research/csae 2004_final-report.pdf.
No. 2
The Integrity of American Elections
1948 to 1952 election when it increased
10.1%.
4
9
The HAVA
identification requirement also did not appear to affect voter
registration. The EAC estimated that there were thirteen million
new voters, an increase of 8%, while the Committee for the
Study of the American Electorate estimated that the number of
newly registered voters in 2004 as compared to 2000 was "an
increase of nearly three million more than the increase in the
eligible population" and an increase of' 5more than six million if
"registration rates remained constant.' In other words, even
with these new requirements, voter registration and turnout
increased substantially.
The increase in turnout in the 2004 election despite the
imposition of HAVA's nationwide identification requirements is
also in accord with the turnout in individual states that imposed
identification requirements prior to the passage of HAVA. While
there is not space in this article to go into detail, a study by the
author of the turnout in presidential elections in four states with
large minority populations (Georgia, South Carolina, Virginia,
and Louisiana) prior to HAVA showed no affect on minority
voters from the implementation of state identification
5
requirements by their legislatures. ' By reviewing turnout in
presidential elections, the possible effects of such a requirement
can be gauged. Since turnout in presidential elections has
fluctuated since 1960 in the midst of a general long-term
decline, the effects of identification requirements must be
analyzed in terms of whether turnout in a particular state has
increased or decreased in comparison to the national average
increase or decrease in turnout as well as the state's turnout
history. In conducting such an analysis, it must also be noted
that according to numerous published studies, many other
factors may influence turnout, including early voting, state laws
on absentee balloting, and local races of interest to voters. In
any event, however, an examination of turnout statistics in these
four representative states with significant minority populations
49. Id.
50. Press Release, U.S. Election Assistance Commission, U.S. Reports to Congress on
Election Reform Progress in 2004, Feb. 9, 2005, available at http://www.civilrights.org/
issues/voting/details.cfm?id=28137; Turnout Exceeds Optimistic Predictions, supra note 48,
at 2.
51. GA. CODE ANN. § 21-2-417 (2004); S.C. CODE ANN. § 7-13-710 (Law. Co-op. 2004);
VA. CODE ANN. § 24.2-643 (Michie 2002); LA. REV. STAT. ANN. § 18:562 (West 2004).
Texas Review of Law & Politics
Vol. 9
showed no reduction in turnout due to the implementation of
identification requirements.
Virginia provides just one example. According to the 2000
Census, Virginia's population is 72.3% white and 19.6% black.52
The percentage of the driving age population with driver's
licenses in 2000 was 87.5%..5 Virginia passed an identification
requirement in 1999 that became effective for the 2000
presidential election. 54 It requires a voter to present a voter
registration card, a social security card, a driver's license, or any
other photo identification issued by a government agency or
employer. If the voter has none of these forms of identification,
he can sign an affidavit subject to felony penalties that he is the
named registered voter. Yet from the 1996 to the 2000
presidential election, when Virginia's identification requirement
became effective, Virginia's turnout increased 5.46 points-from
47.54% to 53%. 5 During that same time period, the national
turnout increased 2.22 points from 49.08% to 51.3%. Thus, even
after imposing a new identification requirement, Virginia's
turnout increased at twice the rate of increase of the national
turnout.
IV. CITIZENSHIP OF VOTERS
Two changes to the national mail-in voter registration form
that states are required to accept by section 6 of the NVRA s6 are
required by 42 U.S.C. § 15483. Two questions with yes/no check
boxes had to be added: "Are you a citizen of the United States of
America?" and "Will you be 18 years of age on or before election
day?51 7 The form also has to state that "[i]f you checked 'no' in
response to either of these questions, do not complete this
form."5 8 If the citizenship question is not answered, the registrar
"shall notify the applicant of the failure and provide
the
applicant with an opportunity to complete the form in a timely
52. U.S.
Census
Bureau,
State and County
Quick Facts: Virginia, available at
http://quickfacts.census.gov/qfd/states/51000.html (last visited March 26, 2005).
53. U.S. Census Bureau, Licensed Drivers by Sex and Ratio to Population:2000, tbl. DL-1C
(Oct. 2001), availableat http://www.flwa.dot.gov/ohim/hs00/dllc.htm.
54. VA. CODE ANN. § 24.2-643 (Mitchie 2002).
55. Information in this paragraph about voter turnout is available on the Election
Assistance Commission website at http://www.eac.gov/election-resources.asp?format=
none.
56. 42 U.S.C. 1973gg-4(c) (2005).
57. 42 U.S.C. 15483(b) (4) (A) (2005).
58. Id.
No. 2
The Integrity of American Elections
manner to allow for the completion of the registration form
prior to the next election for Federal office (subject to State
law)."
Despite the clear language in this provision that requires
individuals to answer the citizenship question before their voter
registration can be accepted by election officials, many states
have ignored the law, pressured by groups such as the League of
Women Voters and the American Civil Liberties Union, and
continue to register individuals who do not answer the
citizenship question. For example, on September 7, 2004,
Ohio's Secretary of State ordered county election officials to
accept voter registration applications "even if the applicants did
not checked[sic] the 'yes' boxes." 6° The South Dakota Secretary
of State also ordered his county election officials to do the same
and the Iowa Attorney General issued an opinion telling his
Secretary of State that he could ignore state law to the contrary
and accept voter registrations of applicants who did not answer
this question. 61
Florida was actually sued to stop the state from complying with
this requirement. A number of unions including the AFL-CIO
and the AFSCME filed suit prior to the November 2004 election
claiming that Florida's refusal to register individuals who did not
as
answer the citizenship question violated the Voting Rights Act
62
standing.
of
lack
for
dismissed
was
case
The
law.
well as state
The addition of this citizenship question to the voter
registration form was prompted by Congress's concern over the
ability of noncitizens, both legal and illegal, to register to vote
without detection. Even the addition of this question, however,
still leaves an honor system in place on the issue of the
citizenship status of voters. Harris County, Texas has already
reported finding at least thirty-five foreign citizens who either
applied for or received voter cards in 2004 after checking the
box on the application saying they were U.S. citizens and is
59. 42 U.S.C. 15483(b) (4) (A).
60. Directive No. 2004-31, Ohio Secretary of State, Sept. 7, 2004.
61. Letter from Chris Nelson, South Dakota Secretary of State, to County Auditors
(Oct. 25, 2004), available at http://www.votelaw.com/blog/blogdocs/Response%20
Letter%20from%20Chris%2ONelson.pdf; Letter from Thomas J. Miller, Iowa Attorney
General, to Chester J. Culver, Iowa Secretary of State (Oct. 20, 2004), available at
http://www.votelaw.com/blog/blogdocs/AG%200pinion%20-%20Check%20the%20B
ox%20%20%2010-20-041.pdf.
62. Diaz v. Hood, 342 F. Supp. 2d 1111 (S.D. Fla. 2004).
Texas Review of Law & Politics
Vol. 9
investigating another seventy. 63 The presence of noncitizens on
our voter rolls is certainly a problem as evidenced by various
reported cases where noncitizens were found to be registered
and, in some cases, to have voted in elections. However, because
of the lack of verification of citizenship status by election
officials and the reported refusal of the Immigration and
Naturalization Service to cooperate with election officials, it is
difficult to know how significant a problem this is.
Some examples show the possible extent of the problem. In
1985, the district director of the INS testified before a task force
in Illinois that 25,000 to 40,000 illegal and legal aliens in
Chicago were registered voters. Before officials in Washington
stopped the probe, a random check by the Dallas INS office in
1997 of only 400 registered voters found ten noncitizens. If this
percentage (2.5%) had held true for the entire county, it would
represent thousands of illegally registered voters. 65 Random
checks by the Honolulu city clerk's office in 2000 with the state
identification card registry maintained by Hawaii showed over
550 registered voters who had admitted they were not U.S.
citizens when applying for a state identification card." In 2002,
eight illegal immigrants testified in court that they had
registered to vote, and six testified that they had voted in a June
5, 2001 city council and mayoral election in Compton,
California. 7
On the federal level, voting by noncitizens was found by the
Committee on House Oversight in the Dornan-Sanchez election
dispute in California in 1997. After a limited comparison of
Orange County voter registration files with INS databases, the
Committee found 784 invalid votes due to individuals who had
63. Joe Stinebaker, Loophole letsforeigners illegally vote, HOUS. CHRON., Jan. 16, 2005, at
B1. The story estimated that dozens if not hundreds of foreign citizens had been allowed
to vote, including a Brazilian woman who voted at least four times and reregistered (and
voted) after her first registration was cancelled when she acknowledged on a jury
summons that she was not a citizen. A Norwegian was discovered to have voted in a state
legislative race decided by only thirty-three votes.
64. Desiree F. Hicks, Foreignerslandingon voter rolls, CHI. TRIB., Oct. 2, 1985, at 4D.
65. Ruth Larson, INS workersforced to halt check of voters, WASH. TIMES, June 4, 1997, at
Al; Ruth Larson, Dallas voter-fraud probe taken out of control of INS, WASH. TIMES, June 10,
1997, at A3. It should be noted that such a check would turn up only the names of aliens
in the INS system, i.e., lawful aliens who have been issued visas to be in the United States
or illegal aliens who have been arrested and released pending further legal proceedings.
66. Scott Ishikawa & Kevin Dayton, Non-U.S. citizens found on voter rolls, THE
HONOLULU ADVERTISER, Sept. 6, 2000, at IA.
67. Daren Briscoe, Noncitizens testify they voted in Compton election, L.A. TIMES, Jan. 23,
2002, at B5.
No. 2
The Integrity of American Elections
registered illegally. 68 The Committee's Report stated that the
question of how many aliens were registered and voting in the
46th Congressional District was not resolved by its investigation.
The Committee concluded:
[T]here is a significant number of aliens who appear within
the INS databases and are on the voter registration rolls of
Orange County. This fact leads logically to a serious question
and a troubling hypothesis: if there is a significant number of
"documented aliens," aliens in INS records, on the Orange
County voter registration rolls, how many illegal or
aliens may be registered to vote in Orange
undocumented
69
County?
In a report released in 1998, California Secretary of State Bill
Jones reported that in just one five-month period from
September 1, 1996, to February 1, 1997, the Orange CountyJury
Commissioner had 455 potential jurors who had been
summoned from the county voter file claim an exemption from
70
jury service because they were not U.S. citizens.
Finally, shortly before the 2004 general election, the chairman
of the Maryland State Board of Election was quoted as saying he
was "shocked" to learn that noncitizens were on the voting
rolls. What was most interesting about this story was the refusal
of the Citizenship and Immigration Service at the Department
of Homeland Security (formerly the INS) to cooperate with the
Maryland election board, with a spokesman citing the federal
Privacy Act and the Immigration and Nationality Act. 72 The
problem with this refusal is that CIS is violating federal law and
apparently doing so without repercussions. Section 642 of the
Illegal Immigration and Immigrant Responsibility Act of 1996
obligates the INS to respond to such inquiries notwithstanding
any other provision of federal law (including the Privacy Act):
Notwithstanding any other provision of Federal, State, or
local laws, a Federal, State, or local government entity or
68. COMM. ON HOUSE OVERSIGHT, DISMISSING THE ELECTION CONTEST AGAINST
LORETrA SANCHEZ, H.R. Doc. No. 105-416, Feb. 12, 1998, p. 15. Since the winning
margin was 979 votes, the election challenge was dismissed.
69. Id.
70. Press Release, California Secretary of State Bill Jones, Press Release and Official
Status Report on Orange County Voter Fraud Investigation (Feb. 3, 1998).
71.
Robert Redding, Jr., Purgingillegal aliensfrom voter rolls not easy; Maryland thwarted
in tries so far, WASH. TIMES, Aug. 23, 2004, at Al.
72. Id.
Texas Review of Law & Politics
Vol. 9
official may not prohibit, or in any way restrict, any
government entity or official from sending to, or receiving
from, the Immigration and Naturalization Service information
regarding the citizenship or immigration status, lawful or
unlawful, of any individual . . . . The Immigration and
Naturalization Service shall respond to an inquiry by a Federal,
State, or local government agency, seeking to verify or
ascertain the citizenship or immigration status of any
individual within the jurisdiction of the agency for any
purpose authorized by law, by providing the requested
verification or status information.73
What is clear from these reports is that the lack of verification
of citizenship in the voter registration process is a serious
problem that can affect the integrity of our elections,
particularly when we have an estimated eight to ten million
illegal aliens in the country. a Having an "honor" system with no
verification or requirement that voter registration applicants
document their citizenship status is unacceptable, as is the
refusal of a federal agency to comply with federal law. In
November 2004, Arizona voters passed a requirement that
individuals registering to vote provide "satisfactory evidence of
United States citizenship"; it is a good model for other states to
follow, particularly in regard to the list of documents that will
satisfy the requirement. 75 Arizona is also covered by section 5 of
the Voting Rights Act, which requires all changes affecting
voting to be submitted to the Attorney General or a federal
district court in the District of Columbia for preclearance. The
Attorney General precleared the citizenship proposition without
objection on January 24, 2005, indicating that the Department
of Justice concluded that this requirement would not have any
discriminatory impact on minority voters. 76
73. 8 U.S.C. § 1373(a), (c) (2005). Since you must be a citizen to register and vote'in
federal (and all state) elections, verifying citizenship status is obviously "within the
jurisdiction" of election officials.
74. Redding, supranote 71.
75. Arizona Proposition 200, available at http://www.azsos.gov/election/2004/info/
PubPamphlet/english/prop200.htm.
76. Howard Fischer, DOJ Voter-approved law not detrimental to minority voting rights,
ARIz. DAILY SUN, Jan. 25, 2005; Yvonne Wingett & Robbie Sherwood, Voting provisions get
clearance,ARIZ. REPUBLIC,Jan. 25, 2005, at lB.
No. 2
The Integrity of American Elections
V. STATEWIDE VOTER REGISTRATION LISTS AND THE NVRA
HAVA requires states to implement a single, uniform, official,
statewide
voter
interactive
computerized
centralized,
registration list for use in all federal elections. Each state must
maintain and administer this database, which must list the name
and registration information of every legally registered voter.
Specific standards are set out for maintaining the list, including
cross-referencing the list with state drivers license records, felony
and death records, and federal social security records. These
lists were supposed to be implemented by 2004 but the majority
of states received a waiver until 2006 from the EAC as allowed
under section 15483 (d). 8
The computerized statewide database is intended to solve
existing problems with, for the most part, county voter
71
registration lists. Many of these lists are full of duplicate names,
individuals who have died, and voters who are no longer eligible
because they have moved, not to mention the fraudulent and
nonexistent individuals that are registered, such as the 1,200
voters under investigation in Wisconsin because of nonexistent
or invalid addresses. A recent study by the Chicago Tribune found
181,000 dead people on voter rolls in six swing states after the
November election.80
Unfortunately, the National Voter Registration Act imposed
onerous and unreasonable restrictions on the ability of states to
purge voters who are ineligible because they have moved and
that was not changed by the requirement of HAVA. Before the
NVRA, if a jurisdiction received information that a voter had
moved, it could send a letter notifying the voter that he would
be deleted from the registration roll unless he confirmed that
he had not moved. Under NVRA, however, a voter can be
dropped only if he confirms in writing to the election officials
that he has moved, or if he does not vote in two federal elections
after failing to respond to a written notice." NVRA's assumption
77. 42 U.S.C. § 15483(a) (2005).
78. 42 U.S.C. § 15483(d).
79. See Susan Greene & Erin Cox, Election becomes a test of trust, DENV. POST, Oct. 31,
2004, at Al (reporting that 68,000 duplicate names were found on registration rolls prior
to the November election).
80. Geoff Dougherty, Dead voters on rolls, other glitchesfound in 6 key states, CHI. TRIB.,
Dec. 4, 2004, at C13.
7
81. See generally section 8 of the NVRA. 42 U.S.C. § 19 3gg-6 (2005).
Texas Review of Law & Politics
Vol. 9
that an individual who has moved will receive a written notice
sent to him at his new address or will take the time to respond in
writing to his former jurisdiction is naive and ignores the huge
volume of junk mail most people receive these days (and
promptly ignore and throw out).
It also does not take into account that the Postal Service will
only forward a person's mail to a new address for a limited
amount of time. A voter may never receive his notice and thus
will not be able to confirm that he has moved and should be
dropped from the registration list. These NVRA restrictions have
resulted in large numbers of ineligible persons remaining on
voter registration lists-increasing the possibility that fraudulent
ballots will be cast in their names. There are numerous
jurisdictions across the United States (such as Alaska) that have
more registered voters than the voting age population, a clear
indication that the jurisdiction is not properly maintaining its
registration list by purging individuals who have moved or
died. 82
A statewide database, while solving the problem of duplicate
registrations within a state, will, of course, not be a bar to
individuals registering and voting in more than one state. This is
a significant problem. In two separate investigations, the
Charlotte Observer found as many as 60,000 voters registered in
both North Carolina and South Carolina and the New York Daily
News found 46,000 voters registered in both New York and
Florida, with at least 1,000 voters who cast ballots in both states
in at least one election.83 Given that the 2000 presidential
election was decided by less than 1,000 votes cast in Florida,
these investigations reveal a serious security problem that must
be remedied. Interestingly, in these cases these problems were
not discovered by election officials running database
comparisons-they were found by newspapers using existing
82. As other examples, the City of East St. Louis has 20% more registered voters than
it has voting age population. Mike Fitzgerald, Dual registration: a recipe for fraud,
BELLEVILLE NEWS-DEMOCRAT, Nov. 28, 2004. Thirty-four of Mississippi's 82 counties have
more registered voters than voting age population. Emily Wagster Pettus, Official seeks bid
for computerized statewide voter roll, COM. APPEAL, Sept. 1, 2004, at DS4.
83. John Strauss & Mark Nichols, 11,214 on rolls in 2 counties, INDIANAPOLIS STAR, Oct.
28, 2004, at IA; Russ Buettner, City mulls action against two-timing voters, N.Y. DAILY NEWS,
Aug. 24, 2004; 60,000 could be on file to vote in both Carolinas,THE STATE, Oct. 25, 2004, at
Al; Double Voting Demands State Action, TAMPA TRIB., Aug. 26, 2004, at 10; James Gordon
Meek & Lisa L. Colangelo, The News Rocks the Vote: Fla. officials say fraud will be probed, N.Y.
DAILY NEWS, Aug. 23, 2004, at 10.
No. 2
The Integrity of Ameican Elections
database technology. Unfortunately, this is the type of
investigation that election officials have shown no interest or
initiative in doing on their own.
VI. STATE AND FEDERAL LEGISLATIVE RECOMMENDATIONS
While many of the changes made by these new HAVA
requirements are an improvement over existing election
requirements and administration, they are not sufficient to
protect the security of our voter registration and election
process. Some of the provisions, such as the identification
requirement, do not go far enough. Some groups have already
exploited ambiguities in the statutory language of some of the
provisions to avoid the statute's mandates. Additionally, some of
HAVA's provisions should be clarified to quash the attempts to
use litigation that forces substantive election administrative
changes on the states that would imperil the integrity of our
elections, were not intended by Congress, and intrude on the
constitutional prerogative of the states to control "[t]he Times,
Places, and Manner" of holding federal elections. 4 As discussed,
but for the Sixth Circuit overturning the wrongly decided
opinions of two federal district court judges just days before the
November 2, 2004 election, HAVA would have been used to
force states to implement the same kind of "precinct shopping"
for voting that tort lawyers have successfully used in forum85
shopping for favorable venues.
In order to fix the problems outlined in this article and
improve the security of the voter registration and election
process, the Help America Vote Act should be amended. A
number of bills have already been introduced in Congress to
amend HAVA, but most experts who follow these issues in
Washington doubt whether any effort to amend HAVA will
succeed. The statute as currently passed was the result of
compromise and hard negotiations between the House and
Senate and Republicans and Democrats. Both sides fear opening
the statute to amendment because of possible changes the other
84. U.S. CONST. art. I, § 4, cl. 1.
85. This would have also led to these groups attempting to influence election
outcomes by pressuring local election officials to count provisional ballots despite
problems with the voter's eligibility, similar to the examination and argument over
individual punch card ballots in Florida in 2000, especially given the short time frames
after elections that officials have to make determinations and the constant threat of
litigation over every decision.
Texas Review of Law & Politics
Vol. 9
side would also want. For example, most Republicans would like
to improve the identification requirements, but most Democrats
would like to delete them entirely.
The other solution is for states to pass laws amending their
election laws, thereby putting in place stricter requirements
than those imposed by HAVA, as they are allowed to do by §
15484.6 All of the changes noted below could be implemented
by states at the local level through state legislative or regulatory
changes or at the federal level by amending HAVA:
"
"
*
Require all voters to present photo identification at theirprecinct
polling locations and to send copies of such identification when
submitting an absentee ballot. Although, as discussed, the
claim that minority voters cannot meet such
requirements is unsubstantiated, that problem can be
easily resolved. For any individual who does not have a
driver's license or other photo identification and who
needs to obtain one to meet this requirement, states
should waive the fee their motor vehicle departments
charge for the nondriver's license identification cards
they issue.
Require an individual who registers by mail to vote in person
8
the first time. A small number of states such as Virginia 1
have such a legal requirement, but all states should
implement such a statute. 8
Require all individuals who register to vote through the use of
mail-in forms, whether they are mailed back to election officials
or hand-delivered y the individual or third-party organizations,
to comply with the HAVA or stricter state identification
requirements. This requirement should apply to all
individuals who do not appear before election officials
who verify their identification, particularly large voter
registration
drives
organized
by
third-party
organizations.
86. "The requirements established by this title are minimum requirements and
nothing in this title shall be construed to prevent a State from establishing ...
requirements that are more strict than the requirements established under this title so
long as such State requirements are not inconsistent with the Federal requirements
under this title or any law described in section 906 [federal voting rights statutes]." 42
U.S.C. § 15484 (2005).
87. VA. CODE ANN. § 24.2-416.1 (B) (Mitchie 2004).
88. States are specifically allowed to have such a requirement by section 6 of the
NVRA. 42 U.S.C. § 1973gg-6 (2005).
No. 2
"
*
•
*
*
The Integrity of American Elections
Require all individuals who register to vote to provide
documentation establishingthat they are United States citizens,
8
similar to Arizona's Proposition 200. At a minimum,
individuals who do not answer the citizenship question
that HAVA requires on the federal voter registration
form should not be registered unless they confirm that
they are U.S. citizens. In addition, all state voter
registration forms should be changed to add the same
citizenship question that is now on the federal voter
registration form.
Prohibitany third-parties (other than a voter's family), such as
campaign workers, from delivering absentee ballots to voters or
voted absentee ballots from voters to election officials. Absentee
ballots represent the biggest source of potential voter
fraud because they are obtained and voted away from
official oversight. Prohibiting third-parties from
delivering ballots would prevent alteration of ballots and
intimidation of voters or fraud by campaign
organizations and other parties.
When third-party organizationsrequest large numbers of voter
registrationforms for voter registration drives, require all such
forms to have individual serial numbers and require election
officials to keep track of which forms are assigned to the
organizations.This will allow election officials to identify
which organization handled voter registration forms that
are found to be fraudulent and help in the investigation
and prosecution of voter registration fraud.
Require all state courts to notify election officials when
individuals whose names are drawn from the registration rolls
are excused from jury duty because they claim they are not U.S.
citizens.
Require states to enter into regional agreements to compare their
new computerized voter registration lists to find voters who are
registered in more than one state.
In addition to the changes noted above that could be
implemented either by states or at the federal level through
changes in HAVA, there are several recommended changes that
can only be done at the federal level. HAVA should also be
amended to:
89. ARIZ. REV. STAT. § 46-140.01 (2005).
Texas Review of Law & Politics
*
Vol. 9
State unequivocally that there is no private right of action under
HAVA or any other federal statute such as § 1983. As
discussed, HAVA required states to implement
comprehensive administrative complaint procedures and
it gave enforcement authority to the U.S. Department of
Justice.90 The debates in Congress during HAVA's
passage make it clear that Congress did not intend to
create a private right of action to enforce HAVA. HAVA
should be clarified by Congress to make it explicit that
the administrative complaint procedures are the
exclusive venue for individuals who have complaints
about a state's compliance with its provisions.
* State unambiguously that the provisional balloting requirements
of § 15482 do not require states to count the ballots of
individuals who cast votes in any precinct other than the
precinct to which they are assigned based on their residence
address. Additionally, it should be made clear that
individuals who are provided provisional ballots as
required under HAVA when they do not present
identification either at the time of registration or when
they vote cannot have their provisional ballot counted
for any federal candidates unless the voter complies with
the identification requirement prior to some period of
time after the election.
* Make clear that if an individual does not answer the citizenship
question on the federal voter registrationform mandated by §
15483(b), he cannot be registeredto vote for a federal election.
* Require all federal courts to notify state election officials when
individuals whose names are drawn from their registrationrolls
are excused from jury duty because they claim they are not U.S.
citizens. This would be similar to a provision that already
exists in section 6 (g) of the NVRA91 that requires all
U.S. Attorneys to notify state election officials when they
obtain a conviction of an individual for a felony in a
federal district court. This is intended to provide
election officials with the opportunity to remove a felon
from the voting rolls if their state provides such a
disqualification.
90. See 42 U.S.C. §§ 15511-15512.
91. 42 U.S.C. § 1973gg-6(g)(1).
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The Integrity of American Elections
Amend the NVRA to allow states to purge individuals who have
not voted in two federal elections as long as they have been sent
a written notice warning them that they will be removed unless
they contact election officials within a certain period of time.
This would change an unworkable and impractical
provision in the NVRA that has single-handedly been
responsible for padding voter registration rolls with huge
numbers of ineligible voters and preventing states from
properly purging their registration lists. It should also be
clear in this change that, unlike the current
requirements of the NVRA, this notice does not have to
be sent out prior to the individual not voting twice; as
long as the individual has not voted in two federal
elections, the states should be able to remove the voter
once they have sent out the written notice and there has
been no response from the individual by the deadline.
All of these changes would improve the security of our
election process and would prevent fraud. They would ensure
that every citizen's vote counts and that the value of his vote is
not stolen by wrongdoing and sloppy procedures. Even if
Congress fails to act by correcting some of the problems in
HAVA and the ambiguities caused by unclear language (as well
as the problems with the NVRA), there is nothing to stop the
states from implementing many of these changes on their own.
Under the Constitution, the states retain a great deal of
constitutional authority to define the requirements for voting.
Despite claims to the contrary, requiring proof of citizenship
and identity as well requiring voting in a precinct where a citizen
resides does not violate the explicit language, the spirit, or the
intent of the Voting Rights Act or other federal voting rights
statutes. It was not the intent of Congress to prevent reasonable
measures to authenticate the eligibility of voters. Ensuring that
elections are fraud free and that all voters are actually eligible to
vote is the key to assuring citizens that the election process is
legitimate and that election results accurately reflect the will of
the voters. The proposed changes discussed here would be
important steps in achieving that goal.
TESTIMONY Election Integrity
Requiring Identification by Voters
March 23, 2009 10 min read
Hans von Spakovsky
Election Law Reform Initiative and Senior Legal Fellow
Testimony Before the Texas Senate on March 10, 2009
Iappreciate the invitation to be here today to discuss the importance of states such as Texas
requiring individuals to authenticate their identity at the polls through photo and other
forms of identification.
By way of background, I have extensive experience in voting matters, including both the
administration of elections and the enforcement of federal voting rights laws. Prior to
becoming a Legal Scholar at the Heritage Foundation, I was a member for two years of the
Federal Election Commission. I spent four years at the Department of Justice as a career
lawyer, including as Counsel to the Assistant Attorney General for Civil Rights. I also
spent five years in Atlanta, Georgia, on the Fulton County Board of Registration and
Elections, which is responsible for administering elections in the largest county in Georgia,
a county that is almost half African-American. I have published extensively on election and
voting issues, including on the subject of voter ID.
Guaranteeing the integrity of elections requires having security throughout the entire
election process, from voter registration to the casting of votes to the counting of ballots at
the end of the day when the polls have closed. For example, jurisdictions that use paper
ballots seal their ballot boxes when all of the ballots have been deposited, and election
officials have step-by-step procedures for securing election ballots and other materials
throughout the election process.
I doubt any you think that it would be a good idea for a county to allow world wide
Internet access to the computer it uses in its election headquarters to tabulate ballots and
count votes - we are today a computer-literate generation and you understand that allowing
that kind of outside access to the software used for counting votes would imperil the
integrity of the election.
Requiring voters to authenticate their identity at the polling place is part and parcel of the
same kind of security necessary to protect the integrity of elections. Every illegal vote
steals the vote of a legitimate voter. Voter ID can prevent:
impersonation fraud at the polls;
voting under fictitious voter registrations;
double voting by individuals registered in more than one state or locality; and
voting by illegal aliens.
As the Commission on Federal Election Reform headed by President Jimmy Carter and
Secretary of State James Baker said in 2005:
The electoral system cannot inspire public confidence if no safeguards exist to deter or
detect fraud or to confirm the identity of voters. Photo identification cards currently are
needed to board a plane, enter federal buildings, and cash a check. Voting is equally
important.
Voter fraud does exist, and criminal penalties imposed after the fact are an insufficient
deterrent to protect against it. In the Supreme Court's voter ID case decided last year, the
Court said that despite such criminal penalties:
It remains true, however, that flagrant example of such fraud in other parts of the country
have been documented throughout this Nation's history by respected historians and
journalists, that occasional examples have surfaced in recent years, and that...demonstrate
that not only is the risk of voter fraud real but that it could affect the outcome of a close
election.
The relative rarity of voter fraud prosecutions for impersonation fraud at the polls, as the
Seventh Circuit Court of Appeals pointed out in the Indiana case, can be explained in part
because the fraud cannot be detected without the tools - a voter ID - available to detect it.
However, as I pointed out in a paper published by the Heritage Foundation last year, a
grand jury in New York released a report in the mid-1980's detailing a widespread voter
fraud conspiracy involving impersonation fraud at the polls that operated successfully for
14 years in Brooklyn without detection. That fraud resulted in thousands of fraudulent
votes being cast in state and congressional elections and involved not only impersonation
of legitimate voters at the polls, but voting under fictitious names that had been
successfully registered without detection by local election officials. This fraud could have
been easily stopped and detected if New York had required voters to authenticate their
identity at the polls. According to the grand jury, the advent of mail-in registration was also
a key factor in perpetrating the fraud. In recent elections, thousands of fraudulent voter
registration forms have been detected by election officials. But given the minimal to
nonexistent screening efforts engaged in by most election jurisdictions, there is no way to
know how many others slipped through. In states without identification requirements,
election officials have no way to prevent bogus votes from being cast by unscrupulous
individuals based on fictitious voter registrations.
The problem of possible double voting by someone who is registered in two states is
illustrated by one of the Indiana voters who was highlighted by the League of Women
Voters in their amicus brief before the Supreme Court in the Indiana case. After an Indiana
newspaper interviewed her, it turned out that the problems she encountered voting in
Indiana stemmed from her trying to use a Florida driver's license to vote in Indiana. Not
only did she have a Florida driver's license, but she was also registered to vote in Florida
where she owned a second home. In fact, she had claimed residency in Florida by claiming
a homestead exemption on her property taxes, which as you know is normally only
available to residents. So the Indiana law worked perfectly as intended to prevent someone
who could have illegally voted twice without detection.
I don't want to single out Texas, but just like Indiana, New York, and Illinois, Texas has a
long and unfortunate history of voter fraud. In the late 1800's, for example, Harrison
County was so infamous for its massive election fraud that the phrase "Harrison County
Methods" became synonymous with election fraud. From Ballot Box 13 in Lyndon
Johnson's 1948 Senate race, to recent reports of voting by illegal aliens in Bexar County,
Texas does have individuals who are willing to risk criminal prosecution in order to win
elections. I do not claim that there is massive voter fraud in Texas or anywhere else. In fact,
as a former election official, I think we do a good job overall in administering our
elections. But the potential for abuse exists, and there are many close elections that could
turn on a very small number of votes. There are enough incidents of voter fraud to make it
very clear that we must take the steps necessary to make it hard to commit. Requiring voter
ID is just one such common sense step.
Not only does voter ID help prevent fraudulent voting, but where it has been implemented,
it has not reduced turnout. There is no evidence that voter ID decreases the turnout of
voters or has a disparate impact on minority voters, the poor, or the elderly --the
overwhelming majority of Americans have photo ID or can easily obtain one.
Numerous studies have borne this out. A study by a University of Missouri professor of
turnout in Indiana showed that turnout actually increased by about two percentage points
overall in Indiana after the voter ID law went into effect. There was no evidence that
counties with higher percentages of minority, poor, elderly or less-educated populations
suffered any reduction in voter turnout. In fact, "the only consistent and statistically
significant impact of photo ID in Indiana is to increase voter turnout in counties with a
greater percentage of Democrats relative to other counties."
The Heritage Foundation released a study in September of 2007 that analyzed 2004
election turnout data for all states. It found that voter ID laws do not reduce the turnout of
voters, including African-Americans and Hispanics - such voters were just as likely to vote
in states with ID as in states where just their name was asked at the polling place.
A study by professors at the Universities of Delaware and Nebraska-Lincoln examined data
from the 2000, 2002, 2004, and 2006 elections. At both the aggregate and individual levels,
the study found that voter ID laws do not affect turnout including across
racial/ethnic/socioeconomic lines. The study concluded that "concerns about voter
identification laws affecting turnout are much ado about nothing."
In 2007 as part of the MIT/CalTech Voter Project, an MIT professor did an extensive
national survey of 36,500 individuals about Election Day practices. The survey found:
overwhelming support for photo ID requirements across ethnic and racial lines with "over
70% of Whites, Hispanics and Blacks support[ing] the requirement;" and
Only 23 people out of the entire 36,500 person sample said that they were not allowed to
vote because of voter ID, although the survey did not indicate whether they were even
eligible to vote or used provisional ballots.
A similar study by John Lott in 2006 also found no effect on voter turnout, and in fact,
found an indication that efforts to reduce voter fraud such as voter ID may have a positive
impact on voter turnout. That is certainly true in a case study of voter fraud in Greene
County, Alabama that I wrote about recently for the Heritage Foundation. In that county,
voter turnout went up after several successful voter fraud prosecutions instilled new
confidence in local voters in the integrity of the election process.
Recent election results in Georgia and Indiana also confirm that the suppositions that voter
ID will hurt minority turnout are incorrect. Turnout in both states went up dramatically in
2008 in both the presidential preference primary and the general election.
In Georgia, there was record turnout in the 2008 presidential primary election - over 2
million voters, more than twice as much as in 2004 when the voter photo ID law was not in
effect. The number of African-Americans voting in the 2008 primary also doubled from
2004. In fact, there were 100,000 more votes in the Democratic Primary than in the
Republican Primary. And the number of individuals who had to vote with a provisional
ballot because they had not gotten the free photo ID available from the state was less that
0.01%.
In the general election, Georgia, with one of the strictest voter ID laws in the nation, had
the largest turnout in its history - more than 4 million voters. Democratic turnout was up an
astonishing 6.1 percentage points from the 2004 election. Overall turnout in Georgia went
up 6.7 percentage points, the second highest increase of any state in the country. The black
share of the statewide vote increased from 25% in 2004 to 30% in 2008. By contrast, the
Democratic turnout in the nearby state of Mississippi, also a state with a high percentage of
black voters but without a voter ID requirement, increased by only 2.35 percentage points.
I should point out that the Georgia voter ID law was upheld in final orders issued by every
state and federal court in Georgia that reviewed the law, including most recently by the
Eleventh Circuit Court of Appeals. Just as in Texas, various organizations in Georgia made
the specious claims that there were hundreds of thousands of Georgians without photo ID.
Yet when the federal district court dismissed all of their claims, the court pointed out that
after two years of litigation, none of the plaintiff organizations like the NAACP had been
able to produce a single individual or member who did not have a photo ID or could not
easily obtain one. The district court judge concluded that this "failure to identify those
individuals is particularly acute in light of the Plaintiffs' contention that a large number of
Georgia voters lack acceptable Photo ID...the fact that Plaintiffs, in spite of their efforts,
have failed to uncover anyone who can attest to the fact that he/she will be prevented from
voting provides significant support for a conclusion that the photo ID requirement does not
unduly burden the right to vote."
In Indiana, which the Supreme Court said has the strictest voter ID law in the country,
turnout in the Democratic presidential preference primary in 2008 quadrupled from the
2004 election when the photo ID law was not in effect - in fact, there were 862,000 more
votes cast in the Democratic primary than the Republican primary. In the general election
in November, the turnout of Democratic voters increased by 8.32 percentage points from
2004, the largest increase in Democratic turnout of any state in the nation. The neighboring
state of Illinois, with no photo ID requirement and President Obama's home state, had an
increase in Democratic turnout of only 4.4 percentage points - nearly half of Indiana's
increase.
Just as in the federal case in Georgia, the federal court in Indiana noted the complete
inability of the plaintiffs in that case to produce anyone who would not be able to vote
because of the photo ID law:
Despite apocalyptic assertions of wholesale vote disenfranchisement, Plaintiffs have
produced not a single piece of evidence of any identifiable registered voter who would be
prevented from...
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