August 6, 2014 at 6:00 AM
Note: This is a guest post by Justin Levitt, a professor at the Loyola Law School, Los Angeles and an expert in constitutional law and the law of democracy, with a particular focus on election administration and redistricting.
Voter ID laws are back in the news once again, with two new opinions from the Wisconsin Supreme Court late last week dealing with the state's ID requirement, which would allow people to vote only if they provide certain forms of government-issued ID. The Court made some minor changes to the law but otherwise upheld it. However, the ID requirement is still on hold pending a federal lawsuit.
Part of this litigation — and any rational debate about the issue generally — hinges on two things: costs and benefits. The costs of these sorts of laws vary, because the laws themselves differ from state to state (some are far more burdensome than others). The ostensible benefits, though, are all the same. And in addressing these purported benefits, the Wisconsin Supreme Court blew it. Twice.
First, the court cited the idea that ID laws could enhance public confidence--that is, in theory, the laws might make us feel better about elections in that they might provide some security theater. It turns out, though, that this effect is hard to spot. People in states with more restrictive ID laws don’t generally feel better about their elections than people in more permissive states. People who think elections are being stolen, and people who think they’re not, each hold on to that opinion no matter what the governing ID rules in their area. The factor that really influences whether people think the elections are fair? Whether their preferred candidates win.
Second, the court said that ID laws can help stop fraud. It then cited an example of recent fraud … that ID laws aren’t designed to stop. Specifically, it mentioned a case in which a supporter of Wisconsin Governor Scott Walker was charged with 13 counts of election fraud, including "registering to vote in more than one place, voting where he didn't live, voting more than once in the same election, and providing false information to election officials," according to an account by Talking Points Memo. Wisconsin's ID law would not likely have prevented any of the alleged violations.
This sort of misdirection is pretty common, actually. Election fraud happens. But ID laws are not aimed at the fraud you’ll actually hear about. Most current ID laws (Wisconsin is a rare exception) aren’t designed to stop fraud with absentee ballots (indeed, laws requiring ID at the polls push more people into the absentee system, where there are plenty of real dangers). Or vote buying. Or coercion. Or fake registration forms. Or voting from the wrong address. Or ballot box stuffing by officials in on the scam. In the 243-page document that Mississippi State Sen. Chris McDaniel filed on Monday with evidence of allegedly illegal votes in the Mississippi Republican primary, there were no allegations of the kind of fraud that ID can stop.
Instead, requirements to show ID at the polls are designed for pretty much one thing: people showing up at the polls pretending to be somebody else in order to each cast one incremental fake ballot. This is a slow, clunky way to steal an election. Which is why it rarely happens.
I’ve been tracking allegations of fraud for years now, including the fraud ID laws are designed to stop. In 2008, when the Supreme Court weighed in on voter ID, I looked at every single allegation put before the Court. And since then, I’ve been following reports wherever they crop up.
To be clear, I’m not just talking about prosecutions. I track any specific, credible allegation that someone may have pretended to be someone else at the polls, in any way that an ID law could fix.
So far, I’ve found about 31 different incidents (some of which involve multiple ballots) since 2000, anywhere in the country. If you want to check my work, you can read a comprehensive list of the incidents below.
To put this in perspective, the 31 incidents below come in the context of general, primary, special, and municipal elections from 2000 through 2014. In general and primary elections alone, more than 1 billion ballots were cast in that period.
Some of these 31 incidents have been thoroughly investigated (including some prosecutions). But many have not. Based on how other claims have turned out, I’d bet that some of the 31 will end up debunked: a problem with matching people from one big computer list to another, or a data entry error, or confusion between two different people with the same name, or someone signing in on the wrong line of a pollbook.
In just four states that have held just a few elections under the harshest ID laws, more than 3,000 votes (in general elections alone) have reportedly been affirmatively rejected for lack of ID. (That doesn’t include voters without ID who didn’t show up, or recordkeeping mistakes by officials.) Some of those 3,000 may have been fraudulent ballots. But how many legitimate voters have already been turned away?
Correction: Justin Levitt is a professor with Loyola Law School, Los Angeles; not the Loyola University Law School.
Note: tracking the allegations — even those that may end up disproven — can help calibrate an upper bound for the actual existing fraud that ID laws would stop. I am a researcher, and so I am interested in a thorough list: if you have credible information about a specific individual whose vote was stolen by an impersonator at the polls, please tell me. Specific and credible means just that. Not — please — examples like this. And if you have information about an incident below that indicates that it was error rather than fraud, please tell me that as well.
(Note: these allegations do not include other forms of fraud not prevented by a requirement to show ID at the polls, including absentee ballot fraud, vote buying, vote coercion, fraud in the tallying process, voter registration fraud, double voting, voting by nonresidents, voting by noncitizens, voting by persons disenfranchised by conviction, or fraud in the petitioning process.)
[1] Jim Planck, Alleged Fraud Casts Pall Over Catskill School Vote, Daily Mail, May 29, 2014.
[2] Alli Knothe, 2 Charged with Voter Fraud in Worcester, Worcester Telegram & Gazette, Dec. 4, 2013.
[3] Max Rivlin-Nadler et al., Brazen Voting Fraud Alleged Among Ultra-Orthodox in Williamsburg, Gothamist, Sep. 11, 2013, http://gothamist.com/2013/09/11/voter_fraud_attempts.php.
[4] Jason Noble, Schultz, Many Iowans Still Solidly Back Voter ID Laws, Des Moines Register, Dec. 15, 2013.
[5] Joel Hoffman, Votes Cast in the Name of 8 More, San Diego Union-Tribune, July 19, 2014.
[6] Joel Hoffman, Votes Cast in the Name of 8 More, San Diego Union-Tribune, July 19, 2014.
[7] Joel Hoffman, Votes Cast in the Name of 8 More, San Diego Union-Tribune, July 19, 2014.
[8] N.C. State Board of Elections, Documented Cases of Voter Fraud in North Carolina, Mar. 11, 2013, http://www.democracy-nc.org/downloads/SBOEFraudMemo2013.pdf.
[9] Dianna Hunt, Democratic Precinct Chairwoman Candidate Indicted in Voter Fraud Case in Fort Worth, Star-Telegram, Apr. 30, 2012; Indictment, State v. Woodard, Case No. 1262418 (432d Texas Dist. Ct., Dec. 1, 2011).
[10] South Carolina Law Enforcement Division, Investigative File #32-12-0008, June 4, 2013, at 4-8, 380-89, 404-13, 475-76, http://www.scribd.com/doc/155615207/SLED-Investigation-Into-Voter-Fraud.
[11] Deposition of Major Forrest Mitchell, Texas v. Holder, No. 1:12-cv-00128, Doc. 229-16 (D.D.C. June 15, 2012), at 162-167.
[12] Joel Hoffman, Votes Cast in the Name of 8 More, San Diego Union-Tribune, July 19, 2014.
[13] Joel Hoffman, Votes Cast in the Name of 8 More, San Diego Union-Tribune, July 19, 2014.
[14] Complaint, State v. Crowder, Case No. 02424794 (177th Texas Dist Ct. May 13, 2009); John Kelso, Commentary, You’re Not Fooling Me. You’re Just Impersonating a Voter, Austin American-Statesman, Mar. 3, 2011.
[15] Susan Lakes, Judge Orders New Election, Hattiesburg American (Miss.), Oct. 24, 2007; Susan Lakes, Candidate to Stay on Ballot, Hattiesburg American (Miss.), Oct. 25, 2007.
[16] Susan Lakes, Candidate to Stay on Ballot, Hattiesburg American (Miss.), Oct. 25, 2007.
[17] Madeline Friedman, Anatomy of Voter Fraud: Will Officials Follow Up on Alleged $10 Vote Payoff?, Hudson Reporter, July 10, 2007.
[18] Marcel Dufresne, Dead Voters? Probe Finds Errors in Records, Hartford Courant, Apr. 20, 2008; In the Matter of a Referral by the Secretary of the State, Conn. State Elections Enforcement Comm’n, File No. 2008-049, Nov. 17, 2008, http://seec.ct.gov/e2casebase/data/fd/FD_2008_949.pdf.
[19] Phuong Cat Le & Michelle Nicolosi, Dead Voted in Governor’s Race, Seattle Post-Intelligencer, Jan. 7, 2005.
[20] Dan McKay, Jeff Jones & Leann Holt, Tallying of Ballots Could Take Days, Albuquerque J., Nov. 3, 2004, at A1.
[21] Dan McKay & David Miles, Clerk Tossing 25% of Ballots, Albuquerque J., Nov. 9, 2004, at A1; Rose-Mary McGee, Disenfranchised By Voter Impersonation, Election Journal, https://www.youtube.com/watch?v=4AF-Nt759Q4.
[22] Dan McKay & David Miles, Clerk Tossing 25% of Ballots, Albuquerque J., Nov. 9, 2004, at A1.
[23] Panio v. Sutherland, 790 N.Y.S.2d 136, 141 (2005).
[24] Milwaukee Police Dept., Special Investigations Unit, Report of the Investigation into the November 2, 2004 General Election in the City of Milwaukee, at 61.
[25] N.C. State Board of Elections, Documented Cases of Voter Fraud in North Carolina, Mar. 11, 2013, http://www.democracy-nc.org/downloads/SBOEFraudMemo2013.pdf.
[26] Young Bush Backer A Little Early, Lewiston Sun-Journal, Apr. 2, 2004.
[27] News Release, AG King Announces Felony Conviction for Illegal Voting, Apr. 9, 2004.
[28] City Commissioner Al Schmidt, Voting Irregularities: Voting Irregularities in Philadelphia County, 2012 Primary Election, July 2012, at 16-18.
[29] Michigan Auditor General, Performance Audit of the Bureau of Elections, Report No. 231-0235-11, May 2012, at 15, http://audgen.michigan.gov/finalpdfs/11_12/r231023511.pdf.
[30] Michigan Auditor General, Performance Audit of the Bureau of Elections, Report No. 231-0235-11, May 2012, at 16, http://audgen.michigan.gov/finalpdfs/11_12/r231023511.pdf.
[31] Transcript, Texas v. Holder, Case No. 12-00128 (D.D.C. July 9, 2012) (vol. I, A.M. Session), at 65-67 (testimony of Texas Director of Elections Keith Ingram).
[32] St. John Barned-Smith, Germantown Woman Pleads Guilty to 2012 Voter Fraud, Gazette, Sept. 13, 2013, http://www.gazette.net/article/20130913/NEWS/130919454/germantown-woman-pleads-guilty-to-2012-voter-fraud&template=gazette.
[33] Steve Macdonald, How Does this Democrat Vote Fraud Grab You?, Granite Grok, Jan. 22, 2014, http://granitegrok.com/blog/2014/01/how-does-this-democrat-vote-fraud-grab-you; Vote Fraud: It, and Mistakes, Happen, New Hampshire Union Leader, Jan. 27, 2014.
[34] Application and Affidavit for Arrest, Nevada v. Segura Segura, Case No. RCR-2014-076362 (Nev. Justice Ct. Reno Township Mar. 12, 2014).
[35] Deposition of Major Forrest Mitchell, Texas v. Holder, No. 1:12-cv-00128, Doc. 229-16 (D.D.C. June 15, 2012), at 167-172.
[36] Eva Ruth Moravec, Woman, 81, Jailed in Vote-Fraud Case, San Antonio Express-News, Oct. 5, 2010.
[37] Brandon Lowrey, Escondido: Mexican Man Admits to Voter Fraud, San Diego Union-Tribune, Sept. 7, 2012, http://www.utsandiego.com/news/2012/Sep/07/escondido-mexican-man-admits-to-voter-fraud/.
[38] Jeremy Roebuck, Progreso Voters Desperate for Solutions to Alleged Election Fraud, McAllen Monitor, Mar. 14, 2009.
[39] Jeremy Roebuck, Progreso Voters Desperate for Solutions to Alleged Election Fraud, McAllen Monitor, Mar. 14, 2009.
[40] Michael Cass, Poll Worker Indicted in Vote Probe, The Tennessean, Dec. 20, 2007; Email from District Attorney Susan Niland to Corbin Carson, July 20, 2012, 11:49:19 AM, http://s3.documentcloud.org/documents/404111/tennessee-davidson-county-with-cases.pdf.
[41] Madeline Friedman, Anatomy of Voter Fraud: Will Officials Follow Up on Alleged $10 Vote Payoff?, Hudson Reporter, July 10, 2007; Madeline Friedman, Unclear Which Agency Will Investigate Voter Fraud, Hoboken Reporter, July 8, 2007.
[42] Editorial, Seeking Justice in Memphis, The Tennessean, June 26, 2006; Gail Kerr, No Problem With Dead Voters Here, Official Says, The Tennessean, Feb. 6, 2006; Marc Perrusquia, Judge: Let's Air Details of Fraud, Memphis Commercial Appeal, May 22, 2007.
[43] United States v. Brown, 494 F. Supp. 2d 440, 486 n.73 (S.D. Miss. 2007).
[44] Manny Garcia & Tom Dubucq, Unregistered Voters Cast Ballots in Dade: Dead Man’s Vote, Scores of Others Were Allowed Illegally, Herald Finds, Miami Herald, Dec. 24, 2000.