Hanging Chads, Absentee Ballots and the Rise of the Voting Wars

In his new book, The Voting Wars: From Florida 2000 to the Next Election Meltdown, University of California election law scholar Richard L. Hasen traces the start of this current conflict to the early years of the Bush administration, when a shadowy (and since disbanded) think tank and a coalition of mostly conservative forces that he calls the “Fraudulent Fraud Squad” began perpetuating the myth that voter fraud is a pernicious and ongoing threat to participatory Democracy. I asked him about Pennsylvania’s controversial voter ID measure, ACORN and how voter disenfranchisement could affect the 2012 election.

You’ve traced the opening salvo of the current voting war to the year 2000. What happened then?
After [the election of George W. Bush in] 2000, Congress considered election reform legislation with the urgent task of providing money to upgrade the technology used to cast and count ballots. Florida, with its “hanging chad” ballots, demonstrated that existing machinery could not be counted on to accurately record people’s votes. As Congress considered what else to include in an election reform bill (which eventually became the “Help America Vote Act,” or HAVA), Republicans needed someone to testify about the prevalence of election fraud, which would justify new restrictive voting rules that they wanted included in the bill. A Republican lawyer, Thor Hearne, started a group called the American Center for Voting Rights right before a congressional hearing on HAVA. The group gave think-tank cache to the idea that voter fraud was rampant, and it relied mostly upon unproven or disproven accusations of election fraud and innuendo.

Hearne testified around the country on the need for restrictive voter ID laws, when the evidence showing a need for such laws just was not there. After the U.S. attorney scandal, in which the Bush administration fired some U.S. attorneys for not prosecuting (weak) voter fraud claims, the American Center for Voting Rights disappeared, and Hearne scrubbed his resume of references of his work for the group. But the damage was done. Hearne and others put into the American consciousness the false notion that voter fraud is a rampant problem.

Supporters of voting restrictions like voter ID claim that they are necessary to prevent “rampant fraud” and point to things like the ACORN scandal as proof. Just how rampant is voter fraud (i.e. a fraudulent ballot actually being cast)? Are there any numbers on how many cases were prosecuted, say, in the last presidential election?
The News21 organization recently contacted prosecutors in all 50 states to find all reports of election-related crimes since 2000. It was a major undertaking. The results were about 2,000 total cases of problems since 2000. Lots of problems were caused by election officials who messed with the vote totals or engaged in other chicanery. There was a fair amount of voter registration fraud (which happened because groups like ACORN were paying workers based on quotas of registration cards), but no evidence any of those false registrations led to fraudulently cast ballots. While there was a fair amount of absentee ballot fraud, much of it involving vote buying using absentee balloting, there were almost no cases of impersonation voter fraud, the kind of fraud that a voter ID law would prevent.

I could not find a single election anywhere in the U.S. in the last generation where impersonation voter fraud committed by voters called an election result into question.

You’ve suggested that Republican efforts to combat election fraud are disingenuous because they focus solely on registration fraud but ignore measures that would actually combat real problems of fraud. Can you explain?
One of the main problems with election crimes is absentee ballot fraud. Some Republicans would even admit it.  And there’s a simple way to cut back on this type of fraud: Don’t allow people to get such ballots unless they can demonstrate some need, such as a health reason or being out of the country on military duty. Yet Republicans never call for cutting back on absentee balloting, which shows that they are not serious about combating voter fraud.

The nation’s eyes are focused on Pennsylvania, where the state Supreme Court is preparing to hear a challenge to our new voter ID law. Detractors say voter ID is the new Jim Crow. Proponents call it a minor inconvenience at worst. How much of an impact do you expect voter ID laws to have on the 2012 presidential election?
I don’t accept the “new Jim Crow” label. I don’t think most Republicans favor these laws out of racial animus or an attempt to put down the African-American vote; they favor them because they will help Republicans by at least modestly depressing Democratic turnout. Many Democrats have engaged in hyperbole and said that the GOP “war on voting” will lead to “millions” of voters being disenfranchised. I’m skeptical of such large numbers. I expect the effects will be much smaller, but I am concerned that Pennsylvania officials may be overwhelmed with identification requests and may not be able to handle all of the requests. In a very close election, the amount of disenfranchised people could matter.

Besides ID laws, what are some of the other ways that the voting wars are being fought?
I’m afraid that the battle over voter identification is just the most prominent in a series of disputes between the parties. In Ohio, Florida and elsewhere, the parties are battling over how long early voting should last. Republican election officials in Florida, Colorado and elsewhere want to use a federal database maintained by the Department of Homeland Security to verify voter citizenship status; Democrats are worried that the purge of noncitizen voters will end up purging many more citizen voters, because the lists are not complete and contain errors and people with similar names. There have been lawsuits over new restrictions in Florida and elsewhere on who may register voters and how. And then we have turf wars between federal, state and local officials over who gets to set various rules for the election—with many of these officials also being leaders of the Democratic or Republican parties. If you haven’t guessed yet, my book is pessimistic about how we would handle another very close presidential election.