Broken elections, stolen votes

Introduction

Were the chaotic presidential elections of 2000 and 2004 an anomaly or a harbinger of things to come this November? Is democracy, as Karl Rove warned the Republican National Lawyers Association in 2006, under siege?

“We have, as you know, an enormous and growing problem with elections in certain parts of America today,” the then-deputy White House chief of staff and Bush political strategist said in response to a question after his speech. “[O]ur democracy depends upon the integrity of the ballot place.” Once its integrity is jeopardized, he went on, “elections will not be about the true expression of the people in electing their government; it will be a question of who can stuff it the best and most.”

Who can stuff ballot boxes the best and most? It’s a chilling question, fueling a worry that has been rattling many Americans’ faith in the institution of free and fair elections since the 2000 presidential election was decided by a 5-4 decision by the U.S. Supreme Court.

Since shortly after taking the White House in 2001, the Bush administration has relentlessly campaigned against voter fraud, asserting that voting by fictitious people and noncitizens is rampant. Democrats, on the defensive in a GOP administration, dismiss these claims and say the biggest threat to democracy is Republican officials who, rather than stuff ballot boxes, use their power to prevent likely Democrats from voting. Some charge that the Republicans stole the 2004 election in Ohio this way, assuring George W. Bush a second term.

Next to the campaign fundraising that’s under the constant spotlight trained on the center ring of the circus known as “buying of the president” is a side ring known as “fiddling with the election.” Sometimes the acts there steal the show, as happened in Florida in 2000 and Ohio in 2004. Following each of those elections, a barrage of news accounts has portrayed an election process open to chicanery, if not outright corruption:

• Party operatives by the thousands assigned to local precincts waiting to challenge the right of people to vote.
• Private jets poised on runways, ready to speed legal SWAT teams to contested jurisdictions.
• Foreign election monitors prowling the country in search of voter suppression.
• Voter rolls purged, and people turned away from polling places arbitrarily.
• Blacks and low-income voters forced to stand in line for hours while their counterparts in predominantly white or more affluent precincts breezed through the process in minutes.
• Mysteriously malfunctioning election equipment.

As for whether the 2000 and 2004 elections were an anomaly, Andrew Gumbel, author of Steal This Vote: Dirty Elections and the Rotten History of Democracy in America, says they were just business as usual.

“Nothing has been more normal, over the past 200-plus years, than for one side in an American election to push, shove, and strong-arm its way across the finishing line, praising the strength and fairness of the process as it goes, while the other side stares forlornly at the inevitability of defeat and yelps in frustration about the perpetration of an outrageous theft that threatens the very fabric of the nation.”

As another fateful election approaches, a politicized debate is raging about voter fraud and voter suppression, in which neither side can agree on the nature of the problem, and every solution put forward is derided as a bid for partisan advantage. The real question remains unanswered: Are the systemic problems of the last two presidential elections likely to recur when the presumptive nominees, Republican John McCain and Democrat Barack Obama, square off in November?

Not long after taking office in 2001, with Florida fresh in everyone’s minds, the Bush administration embarked on what would become a crusade within the GOP: a campaign to ferret out election fraud. The next year, Attorney General John Ashcroft announced the Voting Access and Integrity Initiative and directed all of the Justice Department’s U.S. attorneys to aggressively investigate fraud and prosecute the guilty. He declared:

“America has failed too often to uphold the right of every citizen’s vote, once cast, to be counted fairly and equally. Votes have been bought, voters intimidated, and ballot boxes stuffed. The polling process has been disrupted or not completed. Voters have been duped into signing absentee ballots believing they were applications for public relief. And the residents of cemeteries have infamously shown up at the polls on Election Day.”

That same week the Republican National Committee rolled out a database of 3,273 voters who allegedly had cast more than one ballot. The committee also said it had identified over 700,000 voters registered in more than one state. Reporters, researchers, and state election officials who have examined the lists — and, apparently, the Bush Justice Department, under Ashcroft and his successors — have found little evidence of actual fraud.

The New York Times published an investigative report in April 2007 that said, “Five years after the Bush administration began a crackdown on voter fraud, the Justice Department has turned up virtually no evidence of any organized effort to skew federal elections, according to court records and interviews.”

Seven months later, the Brennan Center for Justice at New York University School of Law published a 32-page report entitled “The Truth about Voter Fraud.” “[M]any of the claims of voter fraud amount to a great deal of smoke without much fire,” wrote the study’s author, Justin Levitt.

He said the problems that regularly make headlines — double-voting, voting by dead people, impersonating people at the polls, voting by dogs — tend to be little more than vivid anecdotes that are later proven false, Levitt said. Claimed double-voting, he said, is usually just a case of two people with the exact same name, sometimes with the exact same name and the exact same birthday — statistically more common than is intuitively obvious.

“By any measure,” he concluded, “voting fraud is extraordinarily rare.”

Loraine C. Minnite, an election fraud expert on the faculty of Barnard College in New York City, agrees. “The claim that voter fraud threatens the integrity of American elections is itself a fraud,” she concludes in a study for Project Vote. “No available evidence suggests that voters are intentionally corrupting the electoral process.”

Both Levitt and Minnite work for organizations devoted to protecting the franchise of the poor and other marginalized people, but even the Bush Justice Department has turned up very little.

In written testimony for a June 6 hearing conducted by the U.S. Commission on Civil Rights, William Welch, chief of the Public Integrity Section of the Justice Department’s Criminal Division, noted that in the almost six years since Ashcroft launched the voter fraud initiative, the department had convicted 111 defendants for fraud offenses out of a total 148 who were charged. Vice Chair Abigail Thernstrom complained of “a lack of really solid data on the dimensions of the voter fraud problem.” When Welch testified in person, Thernstrom, a Republican, and commissioner Todd Gaziano, a conservative independent, pressed for detail.

“I don’t think that anyone can quantify the problem through simply looking at criminal convictions and trying to equate the scope of the problem with the number of convictions,” Welch replied.

How many schemes don’t come to light?

Welch: “It is extremely difficult to quantify or give an estimate on what the scope is.”

Just how large of a problem is noncitizen voting?

Welch: “I really cannot give you an estimate of either how small or how large it is. It simply is an unquantifiable figure as far as we’re concerned.”

Welch did introduce as evidence some figures on multiple registrations. He said that 100,000 Floridians were registered simultaneously in either New York or New Jersey and that 60,000 Kentuckians were also registered across the border in Tennessee. But Welch did note that many such cases can be attributed to messy voter rolls rather than fraudulent behavior. Another witness, Hans von Spakovsky, a former member of the Federal Election Commission, referred to a University of Connecticut study that found 8,558 of Connecticut’s deceased on voter rolls; more than 300 were listed as having voted after they had died. Connecticut’s secretary of state announced in a press conference that no fraud had occurred, but that 5,000 names have been removed from the Connecticut rolls. Currently, Connecticut’s separate Elections Enforcement Commission is looking one-by-one into the cases in which votes were actually cast for any signs of voter fraud.

In his closing remarks at the hearing, Civil Rights Commissioner Michael Yaki, a Democrat, expressed concern about the November election because Obama is an African-American, and one historic motive for election fraud in the United States has been disenfranchisement of blacks.

“Of all elections in the history of this country,” he said, “if there’s any election for which the ’65 Voting Rights Act and its reauthorization cannot fail us in any way, shape, or form — is this election. If there is any doubt, if there is any issue of barriers to voting by African-Americans in this country in this election, this nation will have extreme difficulties dealing with that in its aftermath. . . . We’ve gotta get it right. Democratic, Republican, liberal, conservative, left, right, independent, whatever — we’ve got to get it right this time.”

There’s little wonder John Ashcroft was personally concerned about election fraud: He was named attorney general after being narrowly defeated for reelection to his Senate seat from Missouri by a dead man. Republicans cried fraud, saying it was improper for Democrats to obtain a court order keeping the polls in St. Louis open beyond their scheduled closing time, giving a victory to the late Mel Carnahan.

But Democrats came to see more than personal feelings at work. The Ballot Access and Voting Integrity Initiative that Ashcroft launched in 2002 charged the 94 U.S. Attorneys’ Offices with vigorously pursuing voting fraud. Five years on, it came to light that Ashcroft’s successor as attorney general, Alberto Gonzales, had dismissed nine U.S. attorneys around the country — and as the scandal unfolded it became clear that several had drawn displeasure for their not responding aggressively enough.

In the fall of 2006, the U.S. attorney for New Mexico, David Iglesias, met Patrick Rogers for lunch at an Albuquerque restaurant. Rogers, a well-connected Republican lawyer, wanted to know why Iglesias was not aggressively pursuing cases of voter fraud. Iglesias said he told Rogers that after reviewing more than 100 complaints, none warranted criminal charges. Two years earlier, Iglesias had taken some heat from home-state Republicans for failing to prosecute a worker who allegedly filled out forms to register a 13-year-old to vote. Now — with midterm elections coming up, with the Republicans in danger of losing control of Congress, and with New Mexico increasingly looking like a swing state — Rogers made his unhappiness known.

He wasn’t the only one. New Mexico Senator Pete Domenici, a powerful Republican, placed three calls to Gonzalez to complain about Iglesias. Also joining the chorus was Allen Weh, the New Mexico GOP chairman, who had previously complained about Iglesias to an aide to Karl Rove. Weh later buttonholed Rove himself at a White House holiday party in late 2006. “Is anything ever going to happen to that guy?” Weh said he asked Rove. “He’s gone,” Rove told Weh, according to an interview Weh later gave to McClatchy Newspapers.

And by December 7, he was. In Karl Rove’s April 2006 appearance before the Republican National Lawyers Association, when he made his remark about who can stuff the ballot box “the best and most,” he also listed 11 states that would play a pivotal role in the 2008 elections. In 2005 and 2006, the Bush administration replaced U.S. attorneys in nine of the states he listed: Florida, Colorado, Wisconsin, Minnesota, Iowa, Michigan, Nevada, Arkansas, and New Mexico. Some went quietly; some, like Iglesias, did not.

In August 2007 Gonzales himself would resign, amid accusations that he had misled Congress and allowed partisan politics to infiltrate the policies and daily operations of the Department of Justice.

Among those enforcing the party line was Bradley Schlozman, the deputy chief of the Justice Department’s civil rights division in Washington. Schlozman made partisan loyalty a hiring priority and reassigned staffers he felt were not sympathetic, reportedly saying he wanted to “make room for some good Americans.” He urged federal suits to force states to purge their voter rolls.

In March, 2006, Schlozman — who had no prosecutorial experience — was named U.S. attorney of western Missouri to replace the top prosecutor, who had fallen into disfavor over the vote fraud prosecution issue. Less than a week before the 2006 election, ignoring Justice Department policy to refrain from filing voter fraud charges so close to an election, Schlozman announced felony indictments of four workers for a liberal activist group.

During Schlozman’s tenure in the Justice Department, many career lawyers left the civil rights division. One of them, Joseph D. Rich, who was chief of the division’s voting section from 1999 to 2005, wrote in a Los Angeles Times op-ed article last year that “the Bush administration has rewarded loyalty over all else.”

Another loyal Republican intent on ferreting out fraud was Hans von Spakovsky, the witness who told the Civil Rights Commission about the number of dead voters still on the rolls in Connecticut. Before arriving at the Justice Department, he had been a Georgia county election official who had fought for tougher voter identification laws in his home state. In his post at the voting rights unit, von Spakovsky approved the plan for redistricting Texas put forth in 2003 by former Representative Tom DeLay, despite the opinion of career lawyers that it discriminated against black and Latino voters. He also overruled staff recommendations and approved a voter identification law in Georgia. Both plans were later rejected by the federal courts.

In January 2006 von Spakovsky was given a recess appointment to the Federal Election Commission, the bipartisan agency charged with enforcing the Federal Election Campaign Act. Later, when he went before the Senate seeking confirmation to a full six-year term amid the growing uproar in Congress over the politicization of the Justice Department, Justice Department lawyers who had worked for von Spakovsky accused him of blocking investigations of local governments suspected of suppressing the minority vote. They also accused him of attempting to influence the U.S. Election Assistance Commission’s research into the extent of voter fraud nationally.

The commission was created in 2002 to serve as a national clearinghouse on election information and procedures. Among the commission’s duties was investigating voter fraud and intimidation. A preliminary report, prepared by a bipartisan team of researchers but never officially released, concluded that “there is widespread but not unanimous agreement that there is little polling-place fraud, or at least much less than is claimed.” But that language ultimately was watered down when the report finally was made public. The final version of the report came to this conclusion: “[T]here is a great deal of debate on the pervasiveness of fraud.”

The revisions to the report prompted an outcry from one of the co-authors, who said the changes “completely stood our own work on its head.” Tova Andrea Wang, the liberal-leaning member of the two-person team, claimed that von Spakovsky had complained about the findings. E-mails later released showed that von Spakovsky tried to persuade the commission that its research was flawed and biased.

A special investigator looked into the allegations and concluded this March that the commission had revised the report based upon legitimate concerns, and that von Spakovsky acted properly in his role as an adviser. Wang says she sees a positive result from this outcome: The commission, she told the Center, has become more transparent about its research projects.

Sarah Laskow and Taylor Rausch contributed reporting to this story. Susan Q. Stranahan is a freelance journalist. For 28 years, she was a staff writer at The Philadelphia Inquirer, where she covered environment, business, and the courts. Her stories were a major component of The Inquirer’s coverage of the Three Mile Island accident, which won the 1980 Pulitzer Prize for general local reporting. Stranahan is the author of Susquehanna, River of Dreams, published by the Johns Hopkins University Press, and has written for the Washington Post, the Los Angeles Times, the New York Times, Fortune, Mother Jones, and Time. She lives in Narberth, Pennsylvania.