Believing in vote fraud may be dangerous to a democracy's health.

The law, lawyers, and the court.
Oct. 16 2008 7:16 PM

Nuts About ACORN

Believing in vote fraud may be dangerous to a democracy's health.

A rally in front of the U.S. Capitol, organized by ACORN.
Who's nuts, ACORN or its accusers?

Last night's presidential debate didn't rise to full-frontal bodice-ripper status until John McCain insisted, "[W]e need to know the full extent of Sen. Obama's relationship with ACORN, who is now on the verge of maybe perpetrating one of the greatest frauds in voter history in this country, maybe destroying the fabric of democracy." Obama probably shouldn't have guffawed. But it was hard not to. He was probably thinking, "Destroying the fabric of democracy???"Even for McCain that was a little bit of breathless chest-heaving.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

As far as "gotcha" stunts go, the right-wing feeding frenzy over the vile vote-fraud treachery of ACORN has yet to yield much fruit. Investigations are indeed under way. But then, they are always under way this time of the year—and as the indefatigable Brad Friedman points out, so what? Evidence of voter-registration wrongdoing is no more a sign of widespread, Obama-sanctioned vote fraud than evidence of minorities being misled and intimidated on Election Day is a sign of official, McCain-sanctioned vote suppression. What's the real point of turning voter-registration shenanigans into "one of the greatest frauds in voter history"? The object here is not criminal indictments. It's to undermine voter confidence in the elections system as a whole. John McCain wants to build a better bogeyman, and he needs your help to do it.

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ACORN stands for Association of Community Organizations for Reform Now. It's a 30-year-old nonprofit that organizes on behalf of poor urban minorities, and it has registered 1.3 million new voters this year. There's no denying that the organization's system of paying workers $8 an hour to gather voter registrations creates screwy incentives. Encyclopedia Brown could have cracked that mystery. That's why ACORN is either obligated by law or opts voluntarily to turn over all its voter-registration cards suggesting that Mickey Mouse, Donald Duck, and the entire starting lineup of the Dallas Cowboys just registered to vote in Nevada. That GOP elections officials started screaming "gotcha" when those registrations were turned in is the real fraud here. Jump back, Encyclopedia Brown! There is wrongdoing afoot in low-paying voter-registrationland.

Last week, media attention focused on a "raid" on ACORN offices in Las Vegas in which voter registration documents that had mostly been voluntarily turned over were dramatically seized by force. Right-wing screeching over nefarious doings in Ohio (where Freddie Johnson of Cleveland testified that ACORN encouraged him to sign 73 voter-registration forms—all in his own name) overlooks the fact that all 73 registrations would still have allowed Freddie to vote just once. The connection between wrongful voter registration and actual polling-place vote fraud is the stuff of GOP mythology. As Rick Hasen has demonstrated, here at Slate and elsewhere, even if Mr. Mouse is registered to vote, he still needs to show up at his polling place, provide a fake ID, and risk a felony conviction to do so.

Large-scale, coordinated vote stealing doesn't happen. The incentives—unlike the incentives for registration fraud—just aren't there. In an interview this week with Salon, Lorraine Minnite of Barnard College, who has studied vote fraud systematically, noted that "between 2002 to 2005 only one person was found guilty of registration fraud. Twenty others were found guilty of voting while ineligible and five were guilty of voting more than once. That's 26 criminal voters." Twenty-six criminal voters despite the fact that U.S. attorneys, like David Iglesias in New Mexico, were fired for searching high and low for vote-fraud cases to prosecute and coming up empty. Twenty-six criminal voters despite the fact that five days before the 2006 election, then-interim U.S. Attorney Bradley Schlozman exuberantly (and futilely) indicted four ACORN workers, even when Justice Department policy barred such prosecutions in the days before elections. RNC General Counsel Sean Cairncross has said he is unaware of a single improper vote cast because of bad cards submitted in the course of a voter-registration effort. Republican campaign consultant Royal Masset says, "[I]n-person voter fraud is nonexistent. It doesn't happen, and ... makes no sense because who's going to take the risk of going to jail on something so blatant that maybe changes one vote?"

There is no such thing as vote fraud. The think tank created to peddle the epidemic has evaporated. A handful of cases have been prosecuted. Then why is Sarah Palin shooting off e-mails contending that "we can't allow leftist groups like ACORN to steal this election?" Why is former Sen. John Danforth announcing, all statesmanlike, that the whole 2008 election "has been tainted?" Why is Ted Olson, the Republican National Lawyers Association lawyer of the year, claiming that "[ACORN] acknowledged having to get rid of a thousand people or more who were participating in voter fraud efforts." These people know the difference between registration fraud and vote fraud. Why continue to suggest they are the same thing?

Consider the fact that, as the Brennan Center reported recently, "[E]lection officials across the country are routinely striking millions of voters from the rolls through a process that is shrouded in secrecy, prone to error, and vulnerable to manipulation." Consider the recent New York Timesreview of state records and Social Security records, which concluded that "[t]ens of thousands of eligible voters in at least six swing states have been removed from the rolls or have been blocked from registering in ways that appear to violate federal law." Consider the case, now on appeal to the U.S. Supreme Court, in which 200,000 new Ohio voters stand to be bounced off the rolls because, through no fault of their own, their names don't match error-riddled state databases. Consider the indictment this week of former Republican official James Tobin for his 2002 role in jamming Democratic get-out-the-vote calls. Consider the much-ballyhooed Republican challenge to the eligibility of 6,000 Native American and student voters in Montana that backfired first in court, then with the abrupt resignation this week of the official who spearheaded the effort.

Nobody is suggesting the Democratic get-out-the-vote efforts are perfect. But the suggestion that Barack Obama, through ACORN, is systematically working to get Huey, Dewey, and Louie to steal elections, and that therefore minorities and people of color should be disenfranchised, is cynical beyond belief. Consider the fliers and robo-calls designed to spread false information and threats to Hispanic and African-American voters. (According to the Philadelphia Daily News, fliers in minority neighborhoods warned residents that undercover cops would be lurking around the polls on Election Day, arresting anyone with "outstanding arrest warrants or who have unpaid traffic tickets.") There is wholly implausible vote stealing, and then there is the vote stealing that actually happens. You want to get all crazy-paranoid? I'd worry more about the people who want to rough up their fellow citizen at the polls than people who want to risk jail time for voting twice.

In the end, all roads lead back to John Paul Stevens. He wrote the plurality opinion in last term's Crawford v. Marion County, which upheld Indiana's restrictive voter-ID law. Stevens understood that there is no such thing as polling-place vote fraud, conceding that "[t]he record contains no evidence of any such fraud actually occurring in Indiana at any time in its history." But, continued Stevens, in the manner of someone rationally discussing the likelihood of UFO sightings, "flagrant examples of such fraud in other parts of the country have been documented throughout this nation's history." Like, um, an 1868 mayoral election in New York City, he notes, and a single 2004 incident from Washington. Stevens was more worried about shaky "voter confidence" in elections than actual voting. The message that went out from on high was clear: undermine voter confidence. Even if it's irrational and hysterical and tinged with the worst kinds of racism, keep telling the voters the system is busted.

Each time they spread the word that Democrats (especially poor and minority Democrats) are poised to steal an election, John McCain and his overheated friends deliberately undermine voter confidence. That is the point. It encourages citizens to accede to ever-harsher voter-verification laws—even if they are not needed. It musters support for voter purges that are increasingly draconian. Insist often enough that the other side is cheating, and you may even encourage partisans to take matters into their own hands, leading to the worst forms of polling-place vigilantism—from a cross burning in Louisiana on the eve of a 2006 mayoral election to the hiring of intimidating partisan "poll watchers" to volunteer at inner-city polling places. When McCain goes after ACORN, he's really just asking you to join him in believing that the system is broken. And if you choose to overheat along with McCain, the Supreme Court promises to sign off on any measure that might calm you down later. John McCain might want to be a little more careful about accusing Obama, ACORN, or anyone else, of "destroying the fabric of democracy." In so doing, he's either deliberately or unconsciously encouraging his own supporters to grab a handful of the stuff and start ripping.

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