OCBA UPDATE: Voter fraud: Present danger or myth?

By James G. Derian Most of you have probably heard the old joke, "I'm from Chicago; we vote early and often." Or the late Louisiana Gov. Earl Long's famous 1930s-era quip about the electoral process in his home state: "When I die, I want to be buried in Louisiana, so I can stay active in politics." But, just how prevalent is voter fraud in the U.S. today? What are the facts? Nearly all scholars of America's system of locally run elections acknowledge chronic problems, such as administrative incompetence, sloppy registration rolls, unreliable voting machinery and vote buying. Some of these irregularities involve the intentional misconduct of political parties or other organizations. For example: flyers spreading misinformation about the locations or procedures for voting; partisans dispatched to intimidate voters at the polls; missing ballot boxes that mysteriously reappear; or, as in Michigan's recent history, planting decoy opposition candidates to siphon votes away from the true opposing candidate. These are all problems with election systems, but they are not voter fraud. So what is voter fraud? There is no single accepted definition because we have 50 state electoral systems with 50 different criminal codes governing them, plus a federal code that applies to national elections. Nevertheless, there seems to be basic agreement that voter fraud is fraud perpetrated by individual voters. That is, voter fraud occurs when individuals cast ballots despite knowing they are ineligible to vote. This seems pretty straightforward, but voter fraud is often intentionally conflated with other forms of election irregularities and misconduct for political purposes. It's important, however, for legislators to make these distinctions when addressing challenges to the integrity of the election system - especially when weighing proposed "election reforms" that will have the effect of significantly restricting citizens' access to the electoral process. So, how prevalent is individual voter fraud? A 2005 U.S. Senate Republican Policy Committee report claimed that "voter fraud continues to plague our nation's federal elections, diluting and cancelling out the lawful votes of the vast majority of Americans." However, the committee did not provide any evidence to support this claim. It cited no surveys, statistics or studies to back up its warning that election results are routinely distorted by voter fraud in the United States. Perhaps the reason for this omission is that there is very little evidence to cite. Evidence of voter fraud is found primarily in law enforcement records. And the available evidence suggests that voters very rarely commit voter fraud. At the national level, a major project at the Department of Justice begun in 2002 during the George W. Bush administration, called the Ballot Access and Voting Integrity Initiative, resulted in only a handful of convictions. Government records show that nationwide only 24 people were convicted or pled guilty to illegal voting between 2002 and 2005, an average of eight people a year. This includes five people who voted twice in the same election (once in Kansas and again in Missouri), five who were still under state supervision for felony convictions and 14 who were not U.S. citizens. In addition, this Department of Justice initiative uncovered several vote-buying schemes that resulted in the convictions or guilty pleas of about 30 people, although these were almost all party and election officials, candidates for public office and, in one case, the commander of a local VFW post. The vote-buying cases involved a handful of elections in the Appalachia regions of eastern Kentucky and West Virginia; East St. Louis, Illinois; and Caldwell County, North Carolina. The available state-level evidence of voter fraud, culled from interviews, reviews of newspaper coverage and court proceedings, is also negligible. No states collect and publish statistics on voter fraud. There are no officially compiled national statistics on voter fraud. Even though many criminal acts associated with voter fraud are classified as felonies, voter fraud fails to appear in the F.B.I.'s uniform crime reports. Unfortunately, allegations of voter fraud have historically often been motivated by political calculations. Obviously, parties or campaigns can gain ground in an election by either expanding their voting base or suppressing that of their opponents. But, expanding the vote carries higher risks for incumbents. Elected officials typically try to preserve the majorities that elected them and are wary of the uncertainties posed by the large-scale entry of new voters. As a result, both Republicans and Democrats have been historically wary of expansion. Both parties have sought to control, enforce and bend electoral rules to their advantage. Presently, for example, Republican Party officials and incumbents generally support enacting new restrictive laws governing voter qualifications whenever they anticipate that tightening access to the vote will hurt their Democratic rivals. Primarily, they've been pushing for restrictive voter identification requirements, knowing full well this will have a disproportionate impact on Democratic-leaning voters. The Democrats resist these efforts when they think the new restrictions will threaten their own party base. But, if the new "reforms" aren't likely to threaten their base, the Democrats (whose elected officials share the same interest in a stable predictable electorate as their Republican colleagues) have been known to compromise their principles and endorse new restrictions. Strategically using unfounded allegations of voter fraud for political gain is nothing new in our country. After the Civil War, when freedmen were swept into electoral politics, it was the Democrats who were threatened by a loss of power. And it was Democrats who erected new (ostensibly non-racial) voting restrictions such as poll taxes and literacy tests to respond to the alleged fraud of black voters. Today, the success of Democratic voter registration drives among racial minorities and low-income people threatens to tip the balance of power away from Republicans. So, it's not hard to see why some party operatives might seek to inflate the prevalence of voter fraud in order to generate public support for harsh voting restrictions that disproportionately suppress opposition voters. These new state-law restrictions have come out in waves, beginning in 2011. They include things like mandating government-issued photo IDs, restricting voter registration drives, restricting early voting and absentee ballots, banning election-day voter registration, requiring proof of citizenship to register to vote, mass computer-driven purges of voter rolls and disenfranchising ex-felons. In Michigan, the Republican-led Legislature passed a package of 14 "election reform" bills in June 2012. Three of those bills would have placed harsh new restrictions on voter registration drives, required voters to show a state-sanctioned photo ID and reaffirm U.S. citizenship before receiving a ballot. In a move that drew national attention, Gov. Snyder broke with Secretary of State Ruth Johnson and the other members of his party by vetoing these three bills on July 3, 2012. In so doing, he became the first Republican governor to veto any of the more than 180 restrictive voting measures introduced across the country since the beginning of 2011 in Republican-dominated state legislatures. In my opinion, the allegations of voter fraud advanced to justify the current wave of harsh voting restrictions are overblown and politically motivated. The real election integrity issue in my view is not with individual voters, but with scheming political operatives of all stripes who attempt to bend the electoral system to their advantage and thwart the democratic process. But, I'd like to know what you think. Your views matter to me. Email me at james.derian@delphi.com. ---------------- This text of this commentary is largely drawn from two 2007 studies, both of which I commend to your reading: "The Politics of Voter Fraud" by Lorraine C. Minnite of Columbia University, and "The Truth About Voter Fraud" by Justin Levitt of New York University School of Law. ---------------- James G. Derian, corporate counsel for Delphi Automotive Systems LLC, is the 81st president of the Oakland County Bar Association. Published: Tue, Jan 21, 2014