The self-fulfilling prophecy of election-stealing.

The self-fulfilling prophecy of election-stealing.

The self-fulfilling prophecy of election-stealing.

The law, lawyers, and the court.
May 24 2008 6:44 AM

Disarming Our Demons

The self-fulfilling prophecy of election-stealing.

A judge inspects a ballot
Examining a punch-card ballot during the 2000 Florida recount

Just as some sizable fraction of American children firmly believe in the boogeyman in the closet, many adult Americans cling to a paranoid fear of the election-fraud monster. Too many of us believe in the epidemic of pervasive Democratic vote fraud, and others believe in the specter of systematic Republican vote suppression. The notion that present-day Democrats regularly steal elections by engaging in concerted efforts to vote multiple times in funny mustaches is a myth, unsupported by data or fact. Historically, it's true that conservatives have used voter intimidation, poll taxes, and other skeezy tactics to disenfranchise minority voters. It's also true that some of Karl Rove's flying monkeys have attempted to revive that proud tradition with schemes such as "vote caging" (getting transient students and folks in the military bounced off the voter rolls) and pressuring U.S. attorneys to prosecute vote fraud where none exists. But for the most part, modern polling-place election-stealing has just not been pervasive or systemic.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

The more we believe the other side steals elections, the easier it becomes to devalue their votes. And I'm not sure that's a road anyone wants to travel. A recent Rasmussen poll showed 17 percent of voters believing that large numbers of legitimate voters are prevented from voting and 23 percent convinced that a large number of ineligible people are allowed to vote. That's a lot of people certain that the other side is cheating. That's a lot of reasons to cheat first.

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The seeds of our current hysteria over election fraud were sown during the 2000 election when the nation watched, slack-jawed, as Florida became a still life in Voting Gone Awry.  But in a piece for the Atlanticin 2004, Joshua Green explained that the provenance of this anxiety predated Florida 2000. Describing a 1994 judicial race in Alabama, in which Karl Rove advised one candidate, Green reports that in the midst of a tense re-count, unsubstantiated whispers circulated that the election had been stolen by—among other things—a Democratic strategy of "votes being cast in absentia for comatose nursing-home patients; and Democrats caught in a cemetery writing down the names of the dead in order to put them on absentee ballots."

Paranoia about such tactics by Democrats—especially minority Democrats—morphed from a Bush administration extracurricular activity to its college major during the last eight years. Helped along by bogus think tanks and sketchy research, the boogeyman started to look real. This neatly explains last year's firing of at least two U.S. attorneys for their inability to find genuine vote-fraud cases to prosecute. It also accounts for the takeover of the Justice Department's Voting Rights Division—once devoted to expanding rather than contracting the right to vote—by a handful of myopic vote-fraud crusaders.

And yet a brand-new Justice Department initiative to smoke out rampant liberal vote fraud, with 120 federal prosecutions between 2002 and 2006, resulted in only 86 convictions—mostly of Democrats, and mainly for either filling out forms wrongly or misunderstanding their eligibility. A major bipartisan draft fraud reportsimilarly concluded that there's little polling-place fraud in America and no large-scale systematic fraud. Of course, occasional instances of vote fraud occur. But the claim of massive concerted efforts to organize voters to risk felony convictions at the polls is absurd. As professor Richard Hasen has pointed out in Slate, while there is "a fair amount of registration fraud in this country," it just doesn't translate to mischief at the polls in numbers that swing elections, even close ones.

Why persist in believing in a phantom epidemic? The benefits of a widespread campaign to stamp out fraud pretty much speak for themselves: Voter-ID laws to counter vote fraud disenfranchise minorities, the poor, and the elderly. As former Texas Republican Party political director Royal Masset told the Houston Chronicle last year, while he believed the vote-fraud epidemic to be overblown and opposed Texas' then-pending photo-ID law, the bill "could cause enough of a drop-off in legitimate Democratic voting to add 3 percent to the Republican vote." Score! That bill collapsed last year, but only after debate degenerated into a psychodrama they'll be talking about in Austin for years.

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Unfortunately for Texas Republicans, it's just now come to light that despite a zealous two-year, $1.4 million vote-fraud crusade, Texas' Attorney General Greg Abbott's office has managed to prosecute only 26 casesall against Democrats, and almost all involving minorities. Most were prosecuted for walking absentee ballots to the mailbox for sick or elderly voters, without following the protocol for doing so.

That's why it's doubly tragic that the Supreme Court demonstrated last month what happens when you arm an imaginary boogeyman with a real machine gun: Your pretend problem quickly turns real. Opponents of voter-ID laws say they have the practical effect of suppressing some votes, votes that tend to skew Democratic. Writing for the plurality in Crawford v. Marion County Election Board, Justice John Paul Stevens nevertheless upheld an Indiana voter-ID law requiring voters to have government-issued photo ID. Let's grant that voter-ID laws are popular. The question was supposed to be whether they are necessary. Stevens found that even with no evidence of in-person vote fraud in Indiana, "flagrant examples of such fraud in other parts of the country have been documented throughout this nation's history." As examples, he cited only an 1868 mayoral election in New York City and a single 2004 incident from Washington. Stevens was not concerned by the fact of rampant vote fraud but the fear of it. Propping up wobbly "voter confidence" became more urgent than protecting the right to vote. This was so even though voter confidence went wobbly only after partisans started peddling a mythical epidemic in the first place. (This new Harvard Law Review study shows that voter-ID laws do not increase voter confidence anyhow.)

Justice Stevens decided Crawford as he did because he found no good evidence that poor, disabled, and minority voters had yet been disenfranchised by the voter-ID law. Stevens left open the door to such voters to show in future elections that the voter-ID system actually barred them from the polls. At which time the circle is complete, and the crusade to end imaginary vote fraud will result in real vote suppression. Already in the Democratic primary in Indiana earlier this month, a flock of elderly nuns were denied the vote because they lacked the proper documentation.

The seeds of the modern Supreme Court's elevation of rooting out vote dilution over preventing vote suppression were sown in the court's opinions in Bush v. Gore. According to Jeffrey Toobin's book The Nine, when it became clear that the majority of the court planned to halt the Florida re-count via the equal protection doctrine—traditionally invoked to protect minorities from unequal treatment—Justice Ruth Bader Ginsburg dropped a footnote in her draft dissent. She suggested that if anyone needed protecting, it might be black Florida voters whose ballots were being disputed by state and local authorities. Toobin writes that Justice Antonin Scalia flew into a "rage" and accused Ginsburg of using "Al Sharpton tactics." She removed the footnote. And the modern judicial principle that it's better to suppress minority votes than sanction the appearance of unfair elections was born.

If I am correct that voter mistrust only fosters more voter mistrust, and that the appearance of unfairness on one side simply fuels unfairness on the other, perhaps it's still not too late to disarm bilaterally, before both vote fraud and vote suppression calcify into serious campaign strategies. If Republicans and Democrats can agree that it's not particularly smart or effective to try to steal elections, it may be easier to concede that the other side probably isn't doing it, either.

A version of this article also appears in this week's issue of Newsweek.