On Monday, the Supreme Court released a new ruling that could have lasting, and wide-ranging, impacts on the way we conduct our elections. By a vote of 6-3, the court voted to uphold an Indiana law that requires voters to produce photo identification at the polls.
At the Election Law Blog, Rick Hasen points out that for the court to rule the way it did, it had to find that “a state needs to come forward with merely plausible non-discriminatory interests to justify an election law.” In this case, the plausible interest was preventing voter fraud, and Justice John Paul Stevens — who wrote the controlling opinion in the case — used three examples to find that the interest existed. Those examples were an 1868 quote from the legendary Boss Tweed, fraud in absentee ballots in a mayoral primary held in Indiana in 2003 and an investigation into the 2004 Washington state gubernatorial race that showed 19 instances of “ghost voters” and one instance of fraud by impersonation.
Marty Lederman, an associate professor at Georgetown Law, thinks this is all pretty thin gruel. With a wave of his hand, Lederman dismissed the evidence Stevens cited, writing, “So we have an anecdote about Boss Tweed, and a single modern voter engaged in the sort of fraud at issue here. If that’s the best case that can be made in favor of the law …” The Election Law Blog’s Hasen concurred, saying, “Indeed, though Justice Stevens says that there is evidence of fraud to justify a voter identification requirement, the actual evidence he cites in the footnotes is incredibly thin.” And Kevin Drum argues, “Presumably these were the best examples that anyone could come up with. And what do you conclude from them? That’s easy: in-person voter fraud is vanishingly rare while absentee voter fraud is, perhaps, a problem genuinely worth addressing. Needless to say, though, Indiana’s law does exactly the opposite: it requires voter ID for in-person voting and does nothing to ensure the integrity of absentee voting.”
All of them have a point. Despite the increasing frequency of the right’s claims of voter fraud, and the plethora of laws proposed and/or passed to deal with the “problem,” there remains little evidence of any real fraud.
In an article I wrote with Mark Follman and Jonathan Vanian last year, we explored the issue and its possible relation to the scandal surrounding the firing of U.S. attorneys. In the process of reporting for that article, I spoke with Bud Cummins, one of the fired attorneys, about one of the most commonly cited “examples” of voter fraud — fake voter registrations turned in by workers hired by organizations like ACORN. Cummins pointed out that the important thing to remember about these claims is that there’s, usually, no actual voter fraud going on, because most often these workers make up names or use the names of celebrities or others with no knowledge of their part in the scheme. (Recalling one investigation he was a part of, in which a worker had simply gone through the phone book picking out names, Cummins said, “You’d see something like Bud Smith, then Kate Smith … and then there was Smith Auto Body.”) The real fraud is being perpetrated against the employer, which is often paying for each fake registration that’s turned in.
Follman, Vanian and I also noted this:
More generally, there seems to be little statistical basis for the Republican fixation on voter fraud. The few studies that have been done show fraud to be insignificant to the outcome of elections; it has been measured at levels as low as .0004 percent (PDF) of all ballots cast. Loraine Minnite, an assistant professor of political science at Barnard College, conducted a study of elections from 1992 to 2002 for Demos, a London- and New York-based public-policy think tank. Her analysis of the numbers showed that “the incidence of election fraud in the United States is low and that fraud has had a minimal impact on electoral outcomes.” A 2006 report from the United States Election Assistance Commission, an independent agency created by Congress to “[conduct] research on election administration issues,” calls Minnite’s study the “most systematic look at fraud” (PDF).