By Michael Waldman and Justin Levitt
Thursday, March 29, 2007
As Congress probes the firing of eight U.S. attorneys, attention is centering on who knew what, and when. It's just as important to focus on "why," such as the reason given for the firing of at least one of the U.S. attorneys, John McKay of Washington state: failure to prosecute the phantom of individual voter fraud.
Allegations of voter fraud -- someone sneaking into the polls to cast an illicit vote -- have been pushed in recent years by partisans seeking to justify proof-of-citizenship and other restrictive ID requirements as a condition of voting. Scare stories abound on the Internet and on editorial pages, and they quickly become accepted wisdom.
But the notion of widespread voter fraud, as these prosecutors found out, is itself a fraud. Firing a prosecutor for failing to find wide voter fraud is like firing a park ranger for failing to find Sasquatch. Where fraud exists, of course, it should be prosecuted and punished. (And politicians have been stuffing ballot boxes and buying votes since senators wore togas; Lyndon Johnson won a 1948 Senate race after his partisans famously "found" a box of votes well after the election.) Yet evidence of actual fraud by individual voters is painfully skimpy.
Before and after every close election, politicians and pundits proclaim: The dead are voting, foreigners are voting, people are voting twice. On closer examination, though, most such allegations don't pan out. Consider a list of supposedly dead voters in Upstate New York that was much touted last October. Where reporters looked into names on the list, it turned out that the voters were, to quote Monty Python, "not dead yet."
Or consider Washington state, where McKay closely watched the photo-finish gubernatorial election of 2004. A challenge to ostensibly noncitizen voters was lodged in April 2005 on the questionable basis of "foreign-sounding names." After an election there last year in which more than 2 million votes were cast, following much controversy, only one ballot ended up under suspicion for double-voting. That makes sense. A person casting two votes risks jail time and a fine for minimal gain. Proven voter fraud, statistically, happens about as often as death by lightning strike.
Yet the stories have taken on the character of urban myth. Alarmingly, the Supreme Court suggested in a ruling last year ( Purcell v. Gonzalez) that fear of fraud might in some circumstances justify laws that have the consequence of disenfranchising voters. But it's already happening -- those chasing imaginary fraud are actually taking preventive steps that would disenfranchise millions of real live Americans.
Identification requirements often sound simple. But some types of paperwork simply aren't available to many Americans. We saw this with the new Medicaid proof-of-citizenship requirement, which led to benefits being cut off for many longtime citizens. Some states insist that voters provide photo IDs such as driver's licenses. But at least 11 percent of voting-age Americans, disproportionately elderly and minority voters, lack the necessary papers. Required documentation such as naturalization paperwork can cost as much as $200. By contrast, when the poll tax was declared unconstitutional in 1966, it was $1.50 ($8.97 in 2007 dollars).
Congress should use this controversy as an opportunity to address true issues of voter protection. Experts have concluded that the most significant threat of fraud comes from electronic voting systems, now used by 80 percent of voters. Legislation introduced by Reps. Rush D. Holt (D-N.J.) and Thomas M. Davis III (R-Va.) would require a voter-verified record along with random audits to double-check against tampering. It would also bar wireless components from machines that could allow a hacker using a PDA to stage an attack. Lawmakers should also immediately stop pushing ID measures that would turn away legitimate voters.
Those investigating the U.S. attorney firings should ask what orders went out to other prosecutors in the run-up to the 2006 election. Prosecutors are not hired-gun lawyers on a party payroll. They have a special duty to exercise their power responsibly, particularly in the context of a heated election. Pressure on prosecutors to join a witch hunt for individual voter fraud is a scandal, not just for the Justice Department but for voters seeking to exercise their most basic right.
Michael Waldman is executive director and Justin Levitt is an attorney at the Brennan Center for Justice at New York University School of Law.