Voter Fraud: Solutions Worse than the Problem

Many Americans who remember their history lessons know that in an earlier era big city machines like Tammany Hall in New York City deliberately stole elections, sent hooligans in to intimidate rivals, and paid supporters to “vote early and often”. Since many of the machines of the 19th and early 20th centuries were comprised of recent immigrants such as Irish and Italian, the elite power structure was quick to condemn them and their actions in the press. The elites reacted against these interlopers by creating various measures to prevent or effectively make it impossible for “undesirables” to vote such as poll taxes and literacy tests. Within a generation of the Civil War’s completion, Southern states had more or less prevented the newly eligible blacks from casting votes at all, along with some poorer whites. As immigrants assimilated, party affiliation became less permanent, and more private, and, as later mechanical forms of voting took hold, organized fraud became more difficult to commit. Notwithstanding the controversies raised in the very close Presidential elections in 1960 and 2000, intentional fraud has become rare, and confined to isolated areas. Where problems do occur, they tend to arise, not from conniving voters or factions, but from bureaucratic problems at election registrar offices, such as incompetent management of elections and records, malfunctioning vote-tallying equipment, errors in counting, or mislaid absentee ballots.

But many Americans have become convinced that there is a lot of cheating still taking place. In April, U.S. District Judge Lynn Adelman determined in a 90-page ruling that, for all intents and purposes, election fraud did not exist in the state of Wisconsin. [1] This finding was in reaction to a law backed by Governor Scott Walker that would tighten the identification requirements in order to vote in the Badger State. One might reasonably ask: why was a more stringent ID process necessary for a problem that wasn’t actually taking place? Brendan Nyhan, an assistant professor of government at Dartmouth College, may have an answer. Marquette University’s Law School polled Wisconsin voters and found that 39% believed the practice was so widespread that fraud could be effecting more than a few thousand votes to the outcome in a tight governor’s election. [2]

How could voters have a belief in a claim that didn’t stand up to any scrutiny? Let’s be clear about just what is election fraud, at least in the U.S. context. Lorraine C. Minnite, author of The Myth of Voter Fraud, defines fraud as “the intentional, deceitful corruption of the electoral process by voters. Intent to commit fraud is essential; it distinguishes fraud from error.” (p. 36, The Myth of Voter Fraud, Minnite, Cornell University Press, 2010, ISBN: 9780801448485). Fraud is committed by individuals when they impersonate another voter, submit an absentee ballot that is not theirs, or by a person who is not a resident of the jurisdiction in which the vote is cast. Based on this working definition, not only Wisconsin, but the rest of the United States, seems to have few, if any, difficulties with election fraud, and laws targeted at it appear to have little justification. It seems that, in the case of Wisconsin, the belief that election fraud is rampant was stoked by conservative political organizations that developed anecdotal comments, hearsay, and unfounded claims into a narrative. [3]

Given the highly partisan nature of American politics, it probably would not take much to convince some voters that the “other side” could only win based on chicanery and cheating. But the reality is that election fraud committed on even a small scale simply isn’t taking place, let alone on a scale that would skew election results by thousands of votes as some voters polled believe. The decision by Judge Adelman earlier this year echoes a 5-year investigation by the federal Department of Justice during George W. Bush’s administration, completed in 2007, which found no credible case of organized fraud. In the years of the probe only 120 persons nationwide, of millions of votes cast during that period, were even charged, and only 86 were convicted.  None of these particular convictions for fraud, even in the rare circumstances that it occurred, cost the outcome of an election. [4] Ms. Minnite put this problem in statistical context in The Myth of Voter Fraud: the federal government brought more charges against citizens violating the migratory-bird laws in fiscal year 2005. These aren’t the only government studies to turn back the curtain on election irregularities and found almost nothing there. Iowa Secretary of State Matt Schultz conducted a 2-year investigation in his state that turned up only 117 possibly illegal votes. Of these only 6 merited a criminal conviction [5] As to the sometimes made claim that voters might be registered in more than one location, the state of Kansas mined through 84,000,000 votes cast in 22 states for duplication and found only 14 cases worthy of prosecution, or 0.00000017 percent of the votes cast. [6]

In 2012, Jane Mayer, writing in The New Yorker, profiled the Svengali of the “get tough on voter fraud” movement as Hans von Spakovsky, currently with the conservative Heritage Foundation, who has made a career of pushing even the smallest incidents of election irregularities into a cause celebre. [7] Von Spakovsky’s work has helped to usher into some conservative and Tea-Party circles the notion that developing more stringent requirements on voters will defeat this fraud. While some of the election monitoring organizations that have formed in response to von Spakovsky’s work claim to be independent, non-partisan, and only concerned that legitimate and eligible voters are taking part at polling stations, the only voters that seem to be challenged are ones that are unlikely to vote for conservative candidates. Mayer discusses a national organization called True the Vote, and its Buckeye State partner, the Ohio Voter Integrity Project, which used software that flagged “suspicious” voters to challenge. Invariably these employed algorithms that disproportionately pointed the finger at low-income neighborhoods, students, and those households where extended families lived. Faced with a challenge, these voters are among the least likely to have the resources to fight back.

Today, when voting irregularities occur at all it tends to be voters with prior or current criminal records who may legitimately not realize their status made them ineligible. There are also clerical errors made by election officials involving records that have not been updated. Even when the media might believe there is a credible story of fraud it often turns out to be less than imagined. Mayer notes that The Atlanta Journal-Constitution ran an investigative report in 2000 suggesting that as many as 5,400 deceased residents had “voted” in the previous couple of decades. But later, in response to the article, the Georgia Secretary of State’s office reviewed the findings, and determined that almost all of those records were in fact inaccurate and related to office mistakes. In the end the only smoking gun the paper was left with was a living voter whose name was almost identical to one who was dead. Still, Von Spakovsky and his cohorts continue to use bogus and highly questionable reports such as these though to stir up concern in their constituencies. One of the most successful efforts has been the American Legislative Exchange Council (ALEC) which has been churning out voter ID laws like a mill to pass to conservative allies in state legislatures to tailor to their particular locale.

Despite such limited proof that individual fraud takes place with any sort of frequency, let alone organized attempts to steal elections, more than 30 states now require some form of identification for voting. Typically a driver’s license will suffice at the polling station. But some of the demographic groups that may lack one, such as the elderly (who may no longer drive a car), the economically disadvantaged, or students (two groups who may not be able to afford a car or the fees for a license) are precisely the type that might politically oppose the supporters of these laws. The Brennan Center for Justice [8], affiliated with New York University School of Law, reported that 11% of voting age Americans simply lack the identification required of the most stringent “must have ID” states. The numbers swell to 18% of those aged sixty-five or older, and fully a quarter (25%) of blacks. 

The voter ID movement comes at a juncture where the Supreme Court has struck down a key provision of the Voting Rights Act of 1965. Sections 4 and 5 created a formula and a pre-clearance provision for certain jurisdictions that had shown an egregious pattern of discriminatory practices directed at minority attempts to register and vote. When these jurisdictions proposed changes to any voting laws they needed to receive approval from the U.S. Attorney General or U.S. District Court in Washington. But the plaintiff states in Shelby County v. Holder made the case that times had changed and discrimination was a thing of the past. An interesting phenomenon has taken place in each of the 6 original states that were placed under pre-clearance. All of these states (Alabama, Georgia, Mississippi, North Carolina [some counties], South Carolina, and Virginia) have passed voter ID laws in the aftermath of the Shelby ruling. Alabama had an earlier voter ID law in 2011 rejected by the Department of Justice as being disproportionately harmful to minority voters. Texas, a state added to pre-clearance status in 1975, had a similar law knocked back that year too. South Carolina challenged their defeat of a more stringent law and was victorious after a U.S. District Judge agreed with the Palmetto State. All of these states along with photo ID laws in Georgia, Mississippi, North Carolina, and Virginia all passed or put into effect laws since Shelby. Depending on the state in question, some may allow a state-issued photo ID other than a driver’s license, but all require some official identification.

The prospect of making voting more difficult may be just one factor in public apathy about voting. Other issues may be a lack of civil engagement, poor choices on the ballot with a 2-party system, the negative tone and special interest involvement in elections. But what the Voter Participation Center (VPC) calls the “rising American electorate” already appears demoralized about the political process. Unmarried women and Latinos comprise a large percentage of this group. According to the VPC, “In 2010, more than 71 million unmarried women, people of color and people under thirty—the groups that make up the Rising American Electorate and the majority of voting eligible members in America’s democracy—did not vote. Nearly two thirds of them, 46 million, were not registered to vote; 25 million were registered but did not vote. In 2008, the last presidential election year, more than 46 million Rising American Electorate members failed to vote. Of those non-voters, 37 million were not registered compared to 9 million who were.” [9]  

More education and outreach needs to be done to get these demographic groups interested in the political process. But research suggest that these Americans would benefit from innovations in how voting takes place. Two states, Oregon and Washington, have mail-in ballots only. A number of other states offer various forms of early-voting so potential voters have a range of options that might fit their schedule. The wired generation (some of whom are members of the “rising electorate” could opt for an online means to vote. Having more states that allow same-day registration could allow on-the-fence potential voters to take the leap on Election Day. Finally, the ballot access laws of many states should be relaxed so that more and varied voices can be offered to the public, which might contribute to more participation and substantive public debate. These approaches can only come to fruition, however, if we reverse the decade-long trend toward suspicion of voters. As long as there are elections someone will cheat somewhere. But the evidence suggests that individual fraud is very rare, and organized attempts to tilt elections a thing of the sepia-toned past.

Kirk G. Morrison

 Kirk Morrison is chairman of the National Committee of the American Solidarity Party.