Fraud reform?

The law, lawyers, and the court.
Feb. 22 2006 2:11 PM

Fraud Reform?

How efforts to ID voting problems have become a partisan mess.

With a meltdown in our election system in 2000 and a near meltdown again in 2004, one might think states would use the off-season to get their electoral rules in order. Many of the legal problems in 2004 emerged from areas of uncertainty in the law. (Remember the disputes before the November 2004 election over whether officials would count "provisional ballots" cast in the wrong precinct?) It seems to be in everyone's interest for states to enact clear and fair rules so problems do not arise again during the 2006 midterm elections—or worse, during the 2008 presidential election. Make the rules clear and fair now, so the armies of lawyers won't have much ammunition even in close elections.

Unfortunately, election reform is becoming mired in partisan politics, and the resulting rules changes are increasing, rather than decreasing, the chances of future litigation and election meltdown. Case in point: voter-identification laws.

In looking at what is on the agenda in Republican-controlled legislatures, you'd think that voter fraud is rampant: Ohio, Indiana, Wisconsin, Pennsylvania, Mississippi. In each of these states, Republicans have passed or proposed legislation requiring voters to show identification at the polls or risk casting a vote that will not count. In Arizona, Republicans backed an initiative denying public benefits to illegal immigrants that also included a voter-identification requirement.

Republicans defend voter-identification laws as necessary to combat voter fraud. But Democrats and civil rights organizations see these laws as a way of gaining partisan advantage—because it's the poor who will have a more difficult time securing voter identification. Poor people tend to drive less (meaning they won't have a driver's license, which is the most common form of ID), and they may not have the money to secure certified copies of documents, such as the birth certificates necessary to obtain a state-issued voter identification. The poor also happen to be more likely to vote Democratic.

More important, it's not clear what the nonpartisan object of this exercise would be. Beyond a few isolated instances and anecdotes, there is precious little evidence of the kind of voter fraud a state voter ID card requirement would deter. I am aware of no studies finding evidence of any kind of systematic or serious problems with voters casting ballots in someone else's name, or with voters registering and actually voting using fictitious names. There is a great deal of registration fraud—such as when "Mickey Mouse" registers to vote. That problem is an artifact of paying bounty hunters to collect completed registration forms; some of those mercenaries will falsify information on registration forms. But, invariably, Mickey declines to vote on Election Day, so where is the fraud?

When voter fraud does occur, it tends to be in ways that state voter-identification cards can't catch. There is, for instance, evidence of folks who vote in two states, such as snowbirds who vote in Florida and New York; or people who vote in neighboring states, such as Kansas and Missouri. But voter identification is not checked across states, so how does voter ID help? There is also plenty of evidence of absentee-ballot fraud. Consider the facts of United States v. McCranie, a case in which supporters of opposing candidates for sheriff in Dodge County, Ga., "actually set up tables inside the courthouse at opposite ends of the hall, where supporters on both sides openly bid against each other to buy absentee votes." But most voter-identification laws do not require proof of identity when casting an absentee ballot, either.

Georgia is actually the best example of the increased partisanship and litigation that results when election reform is enacted on a partisan basis. There, the Republican legislature passed a voter-identification law in the name of fraud prevention over the loud protests of Democrats—some of whom noted that the law actually made it simpler to cast an absentee ballot and thus hardly succeeded as a means of combating fraud. Because Georgia is a jurisdiction covered by Section 5 of the Voting Rights Act, it must seek approval from the Department of Justice to put its law into effect, and to gain that approval it had to prove that the law would have no discriminatory effect on minority voters.

Career attorneys at the Justice Department concluded that the Georgia ID law was discriminatory and should not be approved, a decision overruled by DOJ political appointees (a fact the public learned when the internal DOJ memo was leaked to the Washington Post). The DOJ careerists had found that Georgia offered no proof of a problem with fraud and, as the Century Foundation summarized, the careerists' memo concluded that the law would hurt minority voters.

Unsurprisingly, civil rights organizations challenged the Georgia voter-identification law, and a federal district court granted a preliminary injunction against the law, finding that the costs associated with obtaining voter identification (even with a fee waiver) made the ID requirement a de facto unconstitutional poll tax. The court also found no evidence of voter fraud in Georgia to sustain the law, except in the area of absentee ballots—where the law actually made voting without identification easier.

Undeterred, the Georgia legislature passed a new version of the voter-identification law, which its supporters say eases the ability of the poor to obtain a voter ID. The new law awaits DOJ approval and, if approved, further scrutiny by the district court, where plaintiffs still contend that the law is discriminatory.

None of this means that all voter-identification laws are bad ideas. In fact, I think that as part of an overall bipartisan package of election reform—which would include universal voter registration conducted by the government—national voter identification makes sense, especially if structured to limit absentee vote fraud, and so that identification can be checked across states. A package that increased access through universal voter registration and dealt with a real (or imagined) concern about voter fraud through a 100 percent government-funded voter-identification program could gain wide support if both parties were more serious about election reform—and less concerned about gaining partisan advantage.

One of the controversial aspects of the recent Carter-Baker election reform commission report was its endorsement of a voter-identification requirement. (Its chief flaw was failing to provide a mechanism for voters to cast a vote if they lose their ID, such as allowing voters to verify their identification with a simple thumbprint—or at least to cast a provisional ballot.) But the Carter-Baker report is being co-opted for partisan advantage by those using it as cover for enacting voter-ID laws that will disproportionately disenfranchise poorer voters. At a recent forum for the new AEI-Brookings Election Reform Project, Robert Pastor, executive director of the Carter-Baker commission, made it clear that the voter-ID proposal should be enacted only as part of a package with government-funded universal voter registration, and that some Republicans supporting voter ID "are not really serious about making sure that voter ID is free for those who can't afford it …"

In the end, all this partisan jockeying is not going to increase public confidence in the outcome of elections just as we are witnessing a great partisan and racial divide emerging in public's confidence in the electoral process. (And it should be noted that Republicans are not the only ones who know how to enact election reform on a partisan basis. Witness the controversy over Maryland's new election reforms.) After 2004, 21.5 percent of Democrats thought the 2004 presidential election was somewhat or very unfair, compared with less than 3 percent of Republicans.

And it appears, perhaps not surprisingly, that the losers have less confidence than the winners. Consider voter attitudes toward the fairness of the Washington state gubernatorial election in 2004. After a series of recounts and court battles, a Democrat was declared the winner.In a January 2005 Elway Poll of Washington voters, 68 percent of Republicans thought the state election process was unfair, compared with 27 percent of Democrats and 46 percent of Independents. This means Republicans can just as easily lose confidence in the electoral process, should they be on the wrong end of a close presidential election next time. It's in everyone's interest to fix the problems in a nonpartisan way.

In the meantime, the number of election challenges going to court has increased dramatically since the 2000 Florida debacle. The average number of cases in the 1996-99 period was 96 per year, compared with an average of 254 cases per year from 2001 to 2004. It is no wonder that there is such a rise, when the suggestion that election rules are being rigged for partisan advantage starts to look reasonable. Unless political parties are willing to put aside the hope for partisan advantage in election reform and instead enact fair reform with bipartisan cooperation, we can expect more of the same in 2008. Don't say you were not warned.

Richard L. Hasen is a professor of law and political science at the UC–Irvine School of Law and author of The Voting Wars.