I have been working on elections since 2000, when I helped organize a team to defend a potential recount of Wisconsin’s narrow victory for Al Gore (never happened; see Bush v. Gore). Since 2004, I have trained thousands of attorneys to observe at polling places to ensure every eligible voter is allowed to cast a regular ballot. That is, and should be, the only goal of our election laws: enfranchisement!
In 2005 I testified before Congress about Wisconsin’s voting laws, the lack of any actual voter fraud, and the many real administrative problems caused by running a national election in one day. In subsequent years, I helped compile reports of Election Day issues, defended individuals accused of voting irregularities, and was part of the GAB committee to create formal rules for observers.
So, I have some background in election law.
To put it mildly, I was surprised to hear a candidate for President state: “Voter fraud is very, very common.” Not just common, but VERY, VERY common.
The statement, if meant to suggest rampant fraudulent voting, is categorically false. Fraudulent conduct by voters is exceedingly rare. A comprehensive study published in 2014 confirmed 31 cases of in-person voter fraud from 2000 to 2014, out of more than a billion votes. In stark numerical terms, that is one act of fraud for every 32 million votes. When defending Wisconsin’s harsh Voter ID law, the State “could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past.” Frank v. Walker. In other words, voter fraud is very, very, very uncommon.
There is, however, an election fraud that has become common in the past decade: the suggestion that voting laws need to be tightened to combat voter fraud. This is the BIG LIE. It has been used across the country to justify a stunning array of laws designed to make it harder to vote.
Wisconsin has seen a flurry of voting legislation over the past six years. In every case, the legislation is designed to make voting harder, not easier. The efforts include:
- Voter ID, with no safeguard for persons without access to an ID
Requiring a form of student ID that did not exist, along with proof of enrollment
Shortened early voting periods
Elimination of “vouching” for another elector’s residence
Requiring universities to confirm a student’s citizenship
Lengthening the time to establish residency for voting
Limiting the number of places a municipality can use for early voting
Limiting the way absentee ballots can be sent
All these changes were premised upon the need to combat voter fraud. As far back as 2001, then State Legislator Scott Walker began pushing a Voter ID law, stating: “”There is no legitimate reason why eligible voters cannot bring a photo ID. Only people interested in perpetuating voter fraud need fear such a requirement.”
To be sure, there have been occasional voting irregularities. One volunteer famously bought cigarettes to help entice individuals to register to vote; free Kringles (Racine, let’s hope) were provided at a registration event; a handful of paid special registration deputies made up names to meet their targets; Milwaukee wards showed thousands more votes than voters in one election. In each instance, there was no evidence of a voter impersonating another person to cast an invalid ballot. The supposed stuffed Milwaukee ballots turned out to be the result of faulty record-keeping by poll workers – they split the poll books but one half did not use the “pink slips” to track voter numbers.
Elected officials have shamelessly used these irregularities to repeatedly cry “voter fraud,” and used the self-generated concerns about “ballot integrity” to justify new laws to make it harder for some to vote. Do these officials really believe rampant fraud exists, and we just can’t catch it? I have my doubts. Documents recently leaked to The Guardian from the John Doe investigative files show GOP strategists discussing in 2011 whether they should “start messaging ‘widespread reports of election fraud’ so we are positively set up for the recount regardless of the final number.” Now that is a fraud.
Still, the idea of Voter ID polls well. Most voters have an ID, so what is the big deal?
I will tell you. The big deal is not all voters have a photo ID, and voting is a fundamental right. Judge Adelman found, after a vigorous and contested evidentiary hearing, that over 300,000 fully eligible Wisconsin residents lacked a qualifying ID to vote. Going back to statistics, that is 10,000 potentially disenfranchised voters for every case of in-person voter fraud in over a decade.
Can this be fixed, while still requiring a voter to show ID? I think so. For starters, an affidavit option for those who do not have a photo ID despite reasonable efforts is a good safeguard. Other states offer such an option. Make any student ID generated by a college or University acceptable; no need to tell them how to structure their IDs. [Indeed, the manner in which the Legislature defined the requisite student ID, and accompanying proof of enrollment, is the best proof of the suppressive intent of the law. But I digress.] Or, best yet, scrap the whole thing and get back to trusting our better selves.
Provisional ballots are not the answer. They are not counted on Election Day, and most often will never be counted. Case in point – the November 8, 2016 election. By 2:00am Wednesday, all the results were in; the races are over. How many provisional voters are going to take the time to deliver their photo IDs to the clerk’s office? Not many; and that is disenfranchisement.
America is a great country, but we have a tortured history when it comes to the right to vote. At our founding, that great and revered document, the Constitution, did not guarantee the right to vote. It took a Civil War before we extended the right to vote to African Americans in 1870. It took another 50 years before we extended the right to women. Poll taxes were banished in 1964.
Let’s not back-track from that progress. No more fraudulent claims that voter fraud is “very, very common” – or even common. Voter fraud happens, but it is very, very rare – a 1 in 32 million event. We must not use it as an excuse to disenfranchise our fellow citizens.