Voter fraud, to the extent it occurs, is a serious violation, one that should be prosecuted. But the operative phrase in that sentence is “to the extent it occurs.” As the U.S. attorney for New Mexico in 2004, I was asked to teach federal prosecutors about the topic. That was a difficult challenge, because of the thankfully scant history of such cases. My office had not prosecuted any voter fraud cases in over 10 years; that prosecution involved only two individuals.
Why was the Justice Department training its prosecutors in 2004 on voter fraud? In my home district of New Mexico, some believed that the Al Gore campaign’s razor-thin, 366-vote win in New Mexico in 2000 was the product of fraud. I myself assumed that this was a systemic problem, especially after the local newspaper ran lurid headlines with many instances of apparent fraud. I pledged to find and prosecute such cases.
The Bush administration wanted to ensure that the reelection campaign was not marred by fraud. I was one of two U.S. attorneys in the country to set up voter fraud task forces. I held a news conference with the FBI, the New Mexico secretary of state, the New Mexico State Police and the Department of Veterans Affairs office. We established a toll-free number for citizens to call in tips.
At the end of the day, and after working closely with the Justice Department’s Public Integrity Section’s Election Crimes branch, I concluded I did not have a single case I could prove beyond a reasonable doubt. Like any ethical prosecutor, I therefore did not file any voter fraud prosecutions. It turns out that not filing unprovable voter fraud cases was a main reason for my firing in 2007.
Here we are, once again, despite dozens of studies by various think tanks showing a fair election system.
And now the Justice Department is threatening to step in. Among the fundamental rules that govern its operations is that prosecutions must be based on law and facts, and that partisan politics will not play a role. For 40 years, the department has had a policy under which federal prosecutors would wait until the election had been concluded and certified to file voter fraud cases.
The reason for that caution is even assuming voter fraud exists, its minuscule numbers would not affect the outcome of the election. Barr recognizes this when he states that "specious, speculative, fanciful or far-fetched claims” should not be the basis for beginning a federal investigation.
Barr’s memo authorized federal prosecutors across the country to abandon this restrained approach — a move that prompted the long-time election crimes chief, Richard Pilger, to resign from his position. One can surmise only that Pilger did not want to be party to such an aberration in practice and policy.
Barr appropriately recognized that “states have the primary responsibility to conduct and supervise elections.” But he emphasized that “it is imperative that the American people can trust that our elections were conducted in such a way that the outcomes accurately reflect the will of the voters” and warned that “a passive and delayed enforcement approach can result in situations in which election misconduct cannot realistically be rectified.”
Therefore, Barr authorized prosecutors to “pursue substantial allegations of voting and vote tabulation irregularities prior to the certification of elections,” although he cautioned that such inquiries should be limited to situations where “there are clear and apparently-credible allegations of irregularities that, if true, could potentially impact the outcome of a federal election in an individual State.”
The problem with this departure is it appears that the attorney general is seeking to turn the Justice Department into an agency seeking to support the president in a failed reelection bid. The Justice Department historically has been counsel for the people of the United States and not any particular president. There is no reliable indication of systemic voter fraud likely to reverse the results of the election — that would be the only reason to authorize such a drastic change to the policy.
This investigate-now approach makes no sense. The matter is premature. In the case of voting fraud, speed is not the friend of the prosecutor. Deliberation and patience are cardinal virtues. Instead, this new policy will encourage fast, sloppy investigations and prosecutions.
The question to ask is this: What makes this election so special that these extraordinary measures are necessary? This is a poorly considered, extreme solution, worse than the problem it purports to address. Thankfully, it is too little, too late to stop the will of the majority of American voters.