First, it must be noted that there is no evidence to support Trump’s claim, which is not new. Asked if the Justice Department was investigating based on the president’s allegation Tuesday, a spokeswoman said only, “The Justice Department declines to comment.” White House spokesman Sean Spicer said Tuesday that the administration would “maybe” investigate the alleged voter fraud. Later, when pressed, he said, “There is no investigation. I said it was possible. Anything is possible.”
The National Association of Secretaries of State issued a statement saying, “We are not aware of any evidence that supports the voter fraud claims made by President Trump, but we are open to learning more about the Administration’s concerns. In the lead up to the November 2016 election, secretaries of state expressed their confidence in the systemic integrity of our election process as a bipartisan group, and they stand behind that statement today.”
Sessions has in the past asserted that voter fraud exists, though he has declined to endorse Trump’s assertion that millions of fraudulent votes were cast in the 2016 election.
“I don’t know what the president-elect meant or was thinking when he made that comment or what facts he may have had to justify his statement,” Sessions said at his confirmation hearing earlier this month, asked point blank by Sen. Al Franken (D-Minn.) whether he agreed with Trump. “I would just say that every election needs to be managed closely and we need to ensure that there is integrity in it. And I do believe we regularly have fraudulent activities occur during election cycles.”
Sessions said he had not talked to Trump “about that in any depth or particularly since the election.” A spokeswoman for Sessions declined to comment beyond what the senator said at his confirmation hearing.
Sessions, who has yet to be confirmed, himself has come under fire for his own handling of a voter fraud case brought against black civil rights activists in Alabama in the 1980s, when Sessions was U.S. attorney. Prosecutors alleged that three activists, dubbed the “Marion Three,” had violated federal mail fraud statutes by tampering with absentee ballots. The jury acquitted all of them after just three hours of deliberation, and some civil rights leaders saw the decision as a rebuke of a racially motivated case. Sessions, though, has defended his actions, saying he brought the matter after getting complaints from incumbent black officials.
President-day civil liberties advocates fear Session’s and Trump’s views on voter fraud could serve as a basis for them to support voter ID laws that disenfranchise poor or minority voters, such as the one in North Carolina that was overturned by the Supreme Court last summer. Studies have shown in-person voter fraud, which the laws are designed to prevent, is exceptionally rare. They are also concerned that Sessions hailed as “good news, I think, for the South” a Supreme Court decision that gutted a critical section of the Voting Rights Act.
“It is deeply distressing that the President keeps repeating false accusations of widespread voter fraud,” said Wendy Weiser, director of the Democracy Program at the Brennan Center for Justice. “The overwhelming consensus among experts, election officials and members of his own party is that there is no such fraud problem. And frankly, it’s ludicrous to think that millions can fraudulently vote without any getting caught.”
Sessions has said he recognizes the government “cannot create laws designed to improperly inhibit the right of any eligible citizens to vote,” and he has stressed repeatedly his intention to enforce the law fairly regardless of his personal views. But, asked in a recent questionnaire about a study showing the impact of voter ID laws on African American voters, Sessions said he was not familiar with it and pointed to another study that acknowledged some voter fraud exists.
That study “found that ‘there is no doubt’ that voter fraud occurs,” and that a good ID system can deter fraud and make democracies stronger, Sessions wrote.
One of Sessions’s early tests will be how — if he is confirmed — his Justice Department handles a voter ID law in Texas considered one of the strictest in the country. The Justice Department and several civil rights groups challenged the law, which was passed in 2011, and every judge who has considered it has found it to be discriminatory. Last year, the full U.S. Court of Appeals for the 5th Circuit, thought to be one of the most conservative appeals courts in the country, found that the law had a discriminatory effect on minority voters. The court upheld a district court’s finding that 600,000 people, disproportionately minorities, lacked the specific kind of identification required to vote and that it would be difficult for many of them to obtain such IDs.
The court ruled that provisions must be made to allow those who lack the specific ID the law requires – a driver’s license, military ID, passport or weapons permit, among them – to be able to cast a vote. But the judges also said that a district judge needed to reconsider her earlier finding that the Texas legislature intentionally targeted minority voters when it passed the law.
A hearing in that case was scheduled for last Tuesday, but on Friday, shortly after Trump was inaugurated, the Justice Department asked for a one-month delay of the hearing, which was granted. Some former Justice officials said it was reasonable for a new administration to ask for a delay to figure out the best way to move forward. But it also raises the possibility that the Justice Department, which had been one of the parties challenging the law, would switch sides.
Civil rights leaders, who challenged the Texas voter ID law along with the Justice Department, said they were extremely alarmed that Trump’s Justice Department — which under President Obama had urged the court to expedite the scheduling of a hearing in the case – has now asked to delay proceedings.
“The Justice Department’s actions Friday signal a potential shift,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, in a call with reporters Tuesday. “Whether the delay was truly one intended to give the department more time to evaluate its positions, as they claimed in their motion, or whether this was swift action signaling a shift in position remains to be seen. However, we are deeply concerned that this Justice Department is preparing to abandon its commitment to enforcement of our nation’s federal civil rights laws. We deemed their action on Friday astonishing.”
Mark Berman contributed to this report.