How U.S. attorneys were used to spread voter-fraud fears

Long before it fired eight U.S. attorneys for political reasons, the Bush administration had politicized their jobs by making them push a favorite GOP talking point.

Published March 21, 2007 3:30PM (EDT)

Under intense criticism for firing eight United States attorneys, the Bush administration has spent the past few weeks casting about for an explanation for the dismissals that involves performance rather than politics. On March 13, White House spokesman Dan Bartlett tried to come up with one. "Over the course of several years, we have received complaints about U.S. attorneys," he insisted, "particularly when it comes to election fraud cases." On Tuesday, President Bush pressed home this claim with a similar statement during his defense of embattled Attorney General Alberto Gonzales. "We did hear complaints and concerns about U.S. attorneys," said Bush. "Some complained about the lack of vigorous prosecution of election fraud cases."

Bush and Bartlett were arguing that some of the fired attorneys had underperformed by failing to prosecute the raft of offenses that make up voter fraud -- things like vote buying, double voting, and voting by felons, illegal aliens and the deceased. And it is true that at least two of the prosecutors who were let go might not have pursued voter fraud cases to the satisfaction of their bosses at the Department of Justice. But under the Bush administration, pursuing voter fraud is not always about performance. It's often about politics.

A belief in rampant voter fraud in Democratic strongholds -- big cities, minority neighborhoods -- is widespread among Republicans, and claims of vote buying and the like have long been a mainstay of GOP rhetoric. The party has used these claims of voter fraud to help build public support for what it considers electoral reforms, like requiring voters to show photo ID -- reforms that also tend to suppress Democratic turnout on Election Day.

During the Bush administration, a rhetorical tool became public policy. The Republicans could not get a photo ID law through the Senate, but they were able to enlist the 93 United States attorneys in their crusade against voter fraud. In 2002, then-Attorney General John Ashcroft announced an initiative that required "all components of the [Justice] Department" to "place a high priority on the investigation and prosecution of election fraud."

Five years later, Ashcroft's initiative hasn't produced all that much in the way of convictions, at least relative to the overall Department of Justice caseload. Prosecutions for electoral fraud remain a minuscule part of the federal criminal docket. In 2002 alone, there were 80,424 criminal cases concluded nationwide in the 94 U.S. District Courts. By comparison, according to a DOJ document, between the fall of 2002 and the fall of 2005, there were only 95 defendants charged with federal election-fraud-related crimes in the whole country.

After all, election fraud on the federal level can be hard to prove, since proving it often requires that the fraud was committed with the intent of preventing a "fair and impartially conducted election." In New Mexico in 2004, U.S. Attorney David Iglesias, one of the two fired U.S. attorneys who allegedly failed to pursue electoral fraud cases, took a pass on an especially dubious prosecution. A swing state that Gore won by 366 votes in 2000 and Kerry lost by fewer than 7,000, New Mexico is also the site of a long, bitter and ongoing battle between Republicans and Democrats over requiring voters to show photo ID. In 2004, state Republicans pressured Iglesias to file charges in the case of a 13-year-old boy who was illegally registered to vote. The boy had been registered without his or his parents' knowledge, and Iglesias declined to indict anyone. In an interview with Salon, Iglesias conceded that some local Republicans may have been especially disappointed to learn he would not be pursuing criminal charges for election fraud because they would have liked the extra political ammunition.

But sometimes pursuing an investigation can be just as effective as a conviction in providing that ammunition and creating an impression with the public that some sort of electoral reform is necessary. The battle between Democrats and Republicans over photo ID has been most contentious in so-called battleground states like New Mexico. In one such purple state, the GOP used repeated and very public accusations of fraud to ram a photo ID law through the state legislature. In Missouri, Republicans have been accusing Democrats of fraud since the 2000 election. During the Bush administration, three different U.S. attorneys have launched investigations into electoral fraud in Missouri, indicting nine people. Last year, prior to the midterm elections, the administration even dispatched a key voting fraud expert from Washington to assume the job of U.S. attorney in Missouri's Eastern District.

It all began in November of 2000, when then-Sen. John Ashcroft lost a close election to a dead man, Democrat Mel Carnahan. That election was a controversial one in Missouri -- polls remained open past the official closing time in St. Louis, a city dominated by African-American Democrats. This infuriated Republicans, especially Sen. Kit Bond, who delivered a podium-pounding denunciation of alleged voter fraud at the Missouri GOP's victory party on election night. Bond later spearheaded calls for an investigation, pushing Republican lawyers to put together a dossier of allegations that was then delivered to the outgoing, Clinton-appointed U.S. attorney for the Eastern District.

When Bush appointee Raymond W. Gruender took over as U.S. attorney for the St. Louis-based Eastern District, a federal grand jury was hearing testimony about electoral fraud by Gruender's third day on the job. However, before long the grand jury apparently shifted its emphasis from the 2000 race to improprieties in yet another election, the March 2001 Democratic mayoral primary. Investigation of the 2000 election became the province of DOJ lawyers in Washington. Ultimately, neither Gruender nor his superiors in D.C. filed any charges, but after Gruender kicked the investigation of the mayoral primary back to St. Louis city officials, eight individuals were convicted in state court. Gruender was later named to the U.S. Court of Appeals for the 8th Circuit.

Missouri Republicans used the multiple investigations, which together lasted more than a year, as evidence in a push for tougher election laws. By spring of 2002, they were proposing a law requiring that voters show photo ID. The state Legislature finally passed a Republican-sponsored photo ID law four years later, in May 2006. Helping the Republican cause was yet another major investigation of voter fraud by the state's other U.S. attorney, Todd P. Graves of Missouri's Western District, headquartered in Kansas City. In 2004 and 2005 he prosecuted and convicted four people for voting in both Missouri and neighboring Kansas.

Missouri's photo ID law was struck down by the state Supreme Court in October 2006, just before the midterm elections. But by then, the Bush administration had used a loophole in the Patriot Act to appoint Bradley Schlozman, who had supervised the voting section of the Civil Rights Division of the DOJ at headquarters in Washington, as Graves' successor in the Western District. The loophole was closed by a vote of the Senate on Tuesday, but in March of 2006 Alberto Gonzales was able to make Schlozman a U.S. attorney without seeking confirmation from the Senate.

The appointment, the first under the controversial Patriot Act provision, raised eyebrows at DOJ, one former senior Justice Department official told Salon. "Schlozman was one of Gonzales' guys," the former senior official said, "but several of us were scratching our heads when we heard about it because he was not a very well-regarded trial attorney."

Schlozman, who graduated from law school in 1996, was a clerk for three years and an appellate attorney in Washington for two years before joining the Department of Justice. He certainly had less experience (PDF) as a criminal prosecutor than many of his fellow U.S. attorneys. But as the head of the voting section of the DOJ's civil right division, he knew a lot about election fraud. In 2005, he had penned an editorial for the Atlanta Journal-Constitution supporting a bill passed by the Republican-dominated Georgia state Legislature requiring voters to show photo ID. Schlozman argued that the bill would not be an impediment to minority voters.

Less than a week before the 2006 midterm election, in which Missouri was the scene of one of the year's tightest Senate contests, Schlozman announced the indictment of four people for voter fraud. The four had allegedly submitted false voter registrations while working for the group ACORN in the inner city of Kansas City. An organization that conducts registration drives in poor and minority urban neighborhoods, i.e., areas of Democratic strength, ACORN has often been a target of fraud accusations by the right. "This national investigation is very much ongoing," said Schlozman in a statement issued Nov. 1. The indictments were trumpeted by myriad conservative blogs and such national outlets as Fox News, the Wall Street Journal and the Washington Times.

More than four months after he announced them -- and after incumbent Republican Sen. Jim Talent lost a close election to Democrat Claire McCaskill -- Schlozman's four indictments have produced one guilty plea. An indictment against a fifth person was dropped. In the wake of the U.S. attorneys scandal, meanwhile, Schlozman is suddenly on his way out. On Jan. 16, two days before he gave his annual testimony to Congress, during which Democrats questioned him about the mass firing of U.S. attorneys, Attorney General Gonzales announced that John Wood would be taking Schlozman's place in Kansas City. "Schlozman had [only] been there for 10 months," the former senior Justice Department official told Salon. Until the firings became an issue, "They weren't going to replace him."

Political considerations aside, are the types of prosecutions pursued by Schlozman and his peers valid? Is real fraud actually common? As Bud Cummins, one of the eight U.S. attorneys just fired by the Bush administration, tells Salon, cases involving registration drives by groups like ACORN do crop up. But Cummins notes that when there is fraud connected to groups like ACORN, it is often perpetrated upon them, not by them. The groups sometimes pay workers by the number of registrations they turn in, which can lead some of the workers to falsify registrations to earn more money. Others, paid by the hour, falsify registrations so they can appear to have logged extra time.

The "voters" whose names wind up on the phony registrations are usually oblivious. "Those people that are registered in those ways either don't exist or don't know they're registered," said Cummins, who was U.S. attorney for the Eastern District of Arkansas. He also notes that most of these fraudulent registrations will never be used to vote. He provided one example of a case he investigated, in which a registration worker had simply used a phone book to pick out names at random. "You'd see something like Bud Smith, then Kate Smith," he recalled, "and then there was Smith Auto Body."

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).

The problem with the data cited by Minnite and other researchers is that it only counts people who were caught. And for people who believe that voter fraud is widespread, meaning Republicans, the other problem is the source. Numeric research on voter fraud tends to be conducted by and for people who don't believe it's widespread, meaning liberals. Demos, the think tank for which Minnite conducted her study, is progressive. Minnite also just wrote a new paper debunking voter fraud for Project Vote -- a group affiliated with ACORN. Despite a federal agency's endorsement, don't expect Republicans to read and heed Minnite's "systematic study" or to believe anyone else who suggests voter fraud is less than rampant. In fact, the USEAC report that includes an endorsement of Minnite's study was initially withheld. The USEAC delayed releasing it, according to the agency's chairman, a Bush appointee, because of "a division of opinion." The report had failed to give much credence to the issue of voter fraud.

By Alex Koppelman

Alex Koppelman is a staff writer for Salon.

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By Mark Follman

Mark Follman is Salon's deputy news editor. Read his other articles here.

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By Jonathan Vanian

Jonathan Vanian is a Salon editorial fellow.

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