I asked Pawlenty whether he and his PAC would push for voter registration reform along the lines of his own state’s fairly straightforward process, which allows registration up to and including Election Day. (Thanks to my colleague Graham Moomaw for typing it up.)

“One potential corrosion of our freedom and liberty is to have the democratic system, the election system, being undermined or becoming even partially fraudulent or lacking in credibility,” said Pawlenty. “We have electronic scanners in Minnesota. The ballots that were cast last time through the scanners were 99.9 or so percent accurate. There were no problems with them and the individuals who cast those ballots had to present themselves at a polling place in person and with at least some, you know, screens around identification and proper voting.”

Pawlenty went on to say that “all the problems in Minnesota in the Franken-Coleman [Senate] race related to the absentee ballot process.”

“I’ve been told that in 2006 there were 12,000 absentee ballots cast in our state,” said Pawlenty. “That’s a high number based on a historical number, so keep that in mind, 12,000 in 2006. In 2008, there were almost 300,000 absentee ballots cast in our state. Now this is a process where people are supposed to use absentee ballots because they’re unavailable in their voting area on Election Day because they’re out of the state, they’re on business travel, or they’re medically or physically unable to show up. So you can see in a presidential race, you know, an increase of say 10 percent or 20 percent or something like that from 2006. But what you saw is approaching this 3,000 percent increase, in absentee voting in Minnesota … obviously something very extraordinary occurred and what occurred is you had grassroots organizations come in here and use the absentee ballot process as a substitute for voting by mail. And, almost all of the problems … in the Franken-Coleman case come out of these absentee ballots.”

Pawlenty circled back to my question about whether his own state’s voter registration system should be a national model. “Same-day registration in Minnesota would be fine if we had more stringent identification requirements,” he said, “specifically photo ID. We don’t require, and we should require in Minnesota, photo ID. So it’s not that the timing or the day of it is the problem. It’s making sure that we welcome any legal person who’s entitled to vote, to vote. We just need to make sure it’s appropriate. Now, we don’t have a history or tradition in Minnesota of a lot of voter fraud or these kinds of concerns but this Franken-Coleman experience, particularly as related to the absentee ballots, gives us pause. So, it’s not so much a same-day registration issue as it is making sure the registration, and the identification that goes along with it, is rigorous and appropriate.”

I told Pawlenty that I’d asked the question in the context of him hiring Sara Taylor to work for his campaign, and wondered whether he agreed with the priority she, and the Bush administration in general, placed on poring over voter rolls for alleged registration fraud.

“Absolutely,” Pawlenty said. “We should aggressively, at the state and federal level, enforce voter fraud concerns and to aggressively investigate and enforce voter fraud concerns. Because if we allow any corrosion to the integrity of the system, it calls into question the entire credibility of the results of the election and ultimately the pillars of the democracy. It is extraordinarily important. It goes to the core credibility and acceptance of our democratic system. And if people are going to question the outcome and say it was derived by fraud, as opposed to the will of the people, you’ve undermined a core tenet of democracy. It’s very concerning. Now, so to answer your question, we should make it a critical priority.”

The secretaries of state in Indiana, Pennsylvania, Nevada and Wisconsin, where claims of voter-registration fraud were rampant, report that all went well. Despite long lines and technical miscues, none of the GOP officials who earlier raised the bogeyman of voter fraud and claimed that voter registration groups like ACORN planned to steal the election appear to be questioning the integrity of the election outcome.

Today’s lawsuits and rulings include:

The Ohio GOP filed a lawsuit it had previously dropped against Jennifer Brunner, the Democratic secretary of state, claiming she hasn’t done enough to ensure that all provisional ballots are counted fairly and in the same manner across the state.

The New York Times caucus blog quotes Ohio State University law professor and election-law expert Edward Foley saying that the lawsuit is essentially a “placeholder” — Republicans can use it to challenge election results in Ohio if they are close.

“They are specifically relying on Bush v. Gore and the 14th Amendment and claiming that Secretary Brunner’s rules in handling provisional and absentee ballots are not uniform throughout the state of Ohio,” Foley told the Times. “This new filing appears to be an effort by the Republicans to have the process for verifying provisional ballots be handled in their own lawsuit rather than another lawsuit filed by a advocacy group for the homeless.”

Other lawsuits include one filed by the McCain campaign Monday asking a federal judge to order Virginia to count overseas military ballots until Nov. 14. Although the judge didn’t grant the request, he ordered  election officials in Virginia to hold on to the ballots and has scheduled a hearing for Nov. 10 to consider whether late military ballots can be counted.

In Indiana, Project Vote filed a lawsuit challenging Marion County’s decision to reject voter registrations that had been submitted on old registration forms. A judge ruled today that those voter registrations would be accepted.

In Pennsylvania, which has already been called for Sen. Barack Obama, a judge denied a request by voter rights groups that sought to force the state to count emergency paper ballots after the polls closed, instead of taking up to 20 days, as it typically does.

Because this campaign season has been so swamped with lawsuits and threats of legal challenges, both parties have sent thousands of lawyers around the country, particularly in swing states, to prepare to either fend off challenges or bring their own.

At Election Protection headquarters in Washington, nonpartisan volunteer lawyers report that by 8:30 EST this evening, they’d received more than 75,000 calls from voters with questions or problems at polling places.

These lawyers are reporting an unusually large number of provisional ballots being used in Ohio. And in Florida, they are reports of optical-scanning machines malfunctioning, requiring the use of alternative paper ballots. Lock boxes are said to be overflowing. Such problems could, of course, lead to more lawsuits.

The Justice Department’s Civil Rights Division sent about 800 observers around the country to monitor the vote, particularly in areas that have experienced voting problems in the past.

Fox News’ disputed the Black Panther report, saying that Philly’s not exactly a Republican stronghold. Talking Points Memo has an alternative account of what happened — and here’s the video the McCain campaign is distributing.

But the McCain campaign’s supposed litany of problems hasn’t pointed up any serious wrongdoing. Where poll-watchers were supposedly forced to leave precincts, judges have ordered them back in. In Virginia, where Republicans complained that military ballots were not going to be counted, a judge ordered elections officials to hold onto them past Election Day.

GOP complaints in Missouri come down to opposing Democratic calls to extend polling hours there to ease long wait times at the precincts.

Finally, the McCain camp claims that people identifying themselves as Democrats are calling Republicans in Lancaster County, Pa., and falsely telling them that their polling places have changed location. There’s no indication of how many calls have been made or if anyone has been duped by them.

To sum up: While there are some glitches — and there could be more, as I noted last night — long lines, not fraudulent voting or intimidation, are what’s hindering this election. Victory is likely to go to the party and its members who turn out in the greatest numbers — and who are the most persistent.

“You have an unprecedented turnout in a historic election,” said Adisa Muse, director of the Virginia ACLU’s rights-restoration project, “and you just don’t have enough resources.”

On Friday, the Advancement Project, a national voter-protection organization, announced it was moving forward, in conjunction with the Virginia NAACP, in its lawsuit against Gov. Tim Kaine and top state election officials for allegedly failing to provide enough voting machines and poll workers to meet the expected turnout in minority precincts in Richmond, Norfolk and Virginia Beach.The lawsuit seeks remedies like extending voting hours to 9 p.m. on Election Day and offering the option of paper ballots if voters have been waiting longer than 45 minutes. A federal judge in Richmond will hear arguments today.

Nancy Rodrigues, Virginia’s secretary of the board of elections,  told The Washington Independent that the lawsuit’s findings are out of date — and that state law doesn’t permit paper ballots or extended voting hours. That view is disputed in the lawsuit and by other election experts, citing the board’s authority to ensure that elections are properly administered.

The Kaine administration has found an unusual ally in defending against the lawsuit: the Republican Party. State GOP officials are seeking to intervene on the side of the governor, branding the request a “ploy” to get more Democrats to vote. “The other side is exploiting every single loophole that they have available to them,” Del. Jeffrey Frederick, the state GOP chairman, complained to The Washington Post.

Kaine has irked voting-reform advocates by saying that the state is “extremely well-prepared” to handle a big turnout and that long lines are not a major worry. “Look, we wait in line to buy coffee at Starbucks,” he said. “You wait in line to get on a roller coaster,”

“We shouldn’t treat the right to vote like a latte,” countered Judith Browne-Dias, co-director of the Advancement Project. She charges that there are racial disparities in the ratios of voters to machines that could lead to long lines and voters leaving before they cast ballots. In one largely black precinct in Richmond, Advancement Project researchers found a ratio of 452 registered voters per machine, “while across town [in a predominantly white neighborhood], it was 188 voters for each machine.”

Virginia law only requires that the decentralized election boards meet a minimum standard of 750 voters per machine.

With a half-million newly registered voters and an 85 percent turnout expected in some counties Tuesday, the Advancement Project estimated that such high turnouts would require some under-resourced precincts to take 20 hours to process all voters who show up.

There are other potential snares facing voters in Virginia. Peggy Sanner, Virginia coordinator for the non-partisan Election Protection coalition, worries that some voters will be “inappropriately challenged” over their eligibility, slowing down lines. Last week, for example, voting-rights groups protested that the registrar in Radford, Va., was illegally blocking eligible college students from voting because they listed their campus addresses as their home addresses.

In addition, many newly registered Virginia voters, including college students, don’t know that they’re required to bring some form of ID to the polls if they didn’t provide an ID when they registered. The result? They’ll be forced to use a provisional ballot, which are sometimes not included in final vote tallies. In Ohio in 2004, 22 percent of provisional ballots were not counted.

Even the long lines already evident during early voting haven’t fazed state officials. Asked about the possibility of delays on Election Day due to machine shortages, Rodrigues said, “All localities are following the law.”

Research assistance for this article was provided by the Nation Institute Investigative Fund.

Flickr: nshepard

As Republican charges of “fraud” and Democratic claims of “voter suppression” have escalated in the home stretch of the presidential election campaign, liberal activists have started blasting Sen. Barack Obama’s presidential team’s “voter protection” effort for not doing enough to ensure that all Democratic votes are going to be counted on Election Day.

Many activists say that voting machines have been demonstrated as vulnerable to tampering, and when there is no paper trail of the votes cast, problems are possible. These advocates are worried that Obama’s campaign is not doing enough to make sure that the electronic voting machines are properly calibrated — so that a vote cast for Obama goes to Obama.

Illustration by: Matt Mahurin

They are also concerned that the Obama campaign’s legal effort has been not been aggressive enough. They point to Pennsylvania, where the NAACP sued to force the Democratic-controlled state government to provide paper ballots where electronic voting machines have failed. The NAACP won the suit — but the Obama campaign never joined in.

Liberal bloggers talk about how Obama could do more to publicize voting problems — like technical glitches in voting machines and GOP efforts to hold down turnout — in the same way it has countered Republican-generated smears and robocalls.

“I remain not just exceedingly skeptical,” the voter protection blogger Brad Friedman wrote in his blog, Bradblog, last week, “but downright furious at the party’s brazen willingness to allow millions of votes to go either uncounted, incorrectly recorded or recorded in such a way that is 100 percent unverifiable by any human being,”

“They need to get over their tortured thinking that discussing these issues somehow depresses turnout,” Friedman wrote in an email, “There is zero evidence for that thinking.”

Obama’s chief election law attorney, Bob Bauer, disagrees with that argument. Bauer says that evidence from the 2004 election demonstrates that highlighting problems with voting machinery and voter suppression turns off Democratic voters.

“It’s never helpful if the environment is filled with hyperbole about false claims.” Bauer said in a phone interview Thursday, “Voters don’t want to hear it. We’re not going to fall for [the Republicans’] public-relations bait. But if they take a concrete action we will respond to it.”

Bauer maintains that the Obama campaign has moved quickly to respond to technical problems with voting equipment and quell any efforts to deceive voters.

For example, in northern Nevada, Bauer said, many Latino voters had received calls telling them that they could vote by phone. The Obama campaign responded to set the record straight.

When voting machines used in early voting started flipping Obama votes to McCain recently, lawyers from the campaign’s Machine Task Force were dispatched to West Virginia to make sure the machines were properly calibrated.

The Obama campaign, however, has not held a single pres0s conference to highlight these issues.

Bauer and other lawyers close to the campaign, however, said that the campaign’s voter protection effort is more aggressive, more robust and started earlier than that of the Kerry campaign four years ago.

The Obama team has more than 100 paid staffers and full-time volunteers working on voter protection, according to a memorandum sent last week to members of Congress from the Democratic National Committee’s staff attorney, Justin Levitt.

In addition, since the Obama campaign asserts that voter protection is as much a public-relations battle as a legal one, Bauer and the DNC outside counsel, Joseph Sandler, have hired Jenny Backus, a Democratic strategist, as a spokeswoman.

“[Sen. John] Kerry had amassed a pretty large operation himself in terms of having lawyers out there ready to pounce,” said Kenneth Gross, a campaign finance and election law attorney at Skadden, Arps. “Whatever Kerry had, is that much more sophisticated and that much more vibrant…. They are poised to bring action if there are irregularities on Election Day.”

Like Kerry four years ago, the Obama campaign hired a “voter protection coordinator.” This staffer, usually a lawyer, works with field organizers to help register and educate voters, consults with local and state officials to identify potential problems and implements a lawyer recruitment program to get volunteers out to the polls on Election Day.

In Michigan, the campaign and the state party share the same attorney, Mary Ellen Gurewitz, an election law specialist with the Detroit firm of Sachs Waldman. Renee Paradis, a former attorney at the Brennan Center for Justice, is the campaign’s voter-protection coordinator.

Obama’s attorneys, in Michigan and elsewhere, say that more votes are lost to incompetence than fraud or suppression. But they are, nonetheless, trying to keep tabs on proactive suppression efforts.

Friedman, the blogger, disputes this. He says that one serious issue is with electronic voting machines that are prone to error, because there is no way to know whether a vote has been lost.

“They are making no effort to remove these machines,” Friedman said. “It’s exceedingly troubling.”

Ultimately, it won’t be clear whether the Obama campaign’s legal effort has been a success until Nov. 5. But Edward Foley, a law professor at the Mortiz College of Law at Ohio State University, remains concerned that in some states, like Pennsylvania, the lack of a paper trail could undermine the outcome of the election.

Lawyers in Michigan said they have identified trouble spots from previous elections. They say they have made sure that precincts are prepared to handle what is expected to be record turnout.

Efforts to make Election Day go more smoothly are expected to include: handing out sample ballots, dividing long lines alphabetically, posting easy-to-read signs and monitoring to ensure that voters are standing in the right place if a polling station includes more than one precinct.

In New Mexico, Ann Marie Puente, an official with the Travis County Democratic Party in Texas, is the Obama campaign’s voter protection coordinator. She has one deputy. Neither are lawyers but they are building a network of more than 600 out-of-state lawyers to help on Election Day.

In Colorado, the Obama campaign has set up a similar structure with Tim Karpoff, a lawyer from the University of Chicago who worked for Kerry in 2004, heading up the voter protection effort in Wisconsin.

In October, Obama campaign aides sent an email out, seeking volunteers for Spanish-speaking poll workers and watchers. As of Oct. 22, only a small portion of Denver’s polling stations had the requisite number of Spanish-speaking staffers as required by state law.

The campaign also asked for volunteers to head to various counties around the state with sizable Spanish-speaking communities.

As for litigation, Bauer has settled on a strategy of surgical legal strikes, while relying on liberal advocacy and civil-rights groups to stop any efforts to disenfranchise eligible voters.

Though not a hard and fast rule, Democrats expect to take legal action in states where Republicans control the election and voting processes; while Republicans expect to do the opposite.

“If your party is in control in that battleground state, the national campaign will leave it to the local officials,” Gross said. “If your person is not in power they start to get very anxious and paranoid.”

Bauer has won a suit in Michigan and in Montana last month. In Michigan, Republicans promised not to specifically challenge voters whose homes had been foreclosed. In Montana, a judge blocked the Montana’s Republican Party’s effort to declare thousands of voters ineligible.

In Ohio, the Supreme Court ruled that citizens could register to vote and cast a ballot on the same day during the state’s early voting period. In Indiana, state Republicans failed to centralize early voting sites in a government building; state courts ruled that satellite centers for early voting will remain open.

The NAACP won its lawsuit in Pennsylvania and in Colorado, advocacy groups won a commitment from the Republican secretary of state not to purge voters from registration rolls. In New Mexico, the ACLU and Mexican American Legal Defense Fund have filed separate lawsuits alleging GOP-sponsored voter intimidation and suppression. They have not been resolved.

For a list of pending lawsuits across the country, go here.

“No question that the Republicans have put [up] a good bit of activity and tried at a very high level to run a challenge program at a very high level. If you take a look at [their] record of success, it is dismal,” Bauer said. “They have lost in every state where we have engaged with them.”

Friedman says the Obama campaign still needs to be more aggressive.

“They need to bring lawsuits loudly and immediately, dozens of them, wherever necessary,” he wrote in an email.

Bauer says he has made a conscious effort to fight the legal battles on his terms rather than McCain’s. He held several conference calls with reporters after Republicans accused the Assn. of Community Organizations for Reform Now, or ACORN, and the Obama campaign of working together to register fraudulent voters.

But rather than engaging McCain’s “Honest and Open Election Committee,” led by former GOP Sens. John Danforth (Mo.) and Warren Rudman (N.H.), Bauer turned the tables on McCain’s campaign by calling on the U.S. attorney general to investigate links between McCain’s campaign and federal law enforcement officials.

In a letter sent to Atty. Gen. Michael Mukasey on Oct. 20, Bauer asked that DOJ’s special prosecutor investigate “an emerging pattern of apparent unlawful coordination” between the McCain campaign, DOJ and Republican officials at the state level.

Four days later, Bauer sent Mukasey a letter asking him not to follow up on a White House request to intervene in Ohio and elsewhere to set up a system to challenge voters’ eligibility. Mukasey subsequently said he would not intervene.

In focusing on Mukasey, Bauer tied GOP efforts at encouraging state and federal officials to investigate voter registration fraud back to the Bush administration’s firing of eight U.S. attorneys for political reasons, including their unwillingness to pursue voter fraud cases. A special prosecutor is examining whether DOJ officials violated federal criminal law.

TWI’s Daphne Eviatar, who has blogged on the issue periodically, now provides a comprehensive history and analysis of voter fraud in the United States. A must-read for those interested in getting the facts straight.

Check it out here.

Illustration by: Matt Mahurin

Earlier this month, Republicans in Ohio lost their lawsuit challenging a state rule that allows voters to register and vote early on the same day. But the state party had no intention of conceding the point. GOP officials demanded records from all 88 county boards of election identifying every person who took advantage of same-day registration and voting. In one county, the Republican district attorney even opened a grand jury investigation.

“He’s investigating people who the law says are allowed to vote,” said Ohio ACLU lawyer Carrie Davis. After it was revealed that the district attorney was also the local chairman of the McCain campaign, he was forced to appoint a special prosecutor to handle the case.

There’s no indication that any of these voters did anything illegal. But the attempt to investigate voters who took advantage of a state rule designed to encourage voter participation exemplifies the kinds of attacks on new voters that are going on across the country.

Illustration by: Matt Mahurin

Even when the challenges fail, Republican officials persist in their claims of voter fraud in what appears to be an effort to lay the groundwork for challenging the outcome of Election Day. In about a dozen interviews, legal scholars and voting experts say this broad-based attack could lead to serious and continuing challenges to the legitimacy of the next president.

“[Republicans are] trying to do what they can to poison the well on the eve of the election because they’re not winning on the issues,” contends Charles Lichtman, statewide lead counsel for the Florida Democratic Party. The party, like the Obama campaign, is assembling a team of volunteer lawyers to take on unwarranted challenges and obstruction to voters on Election Day. “They know there are more Democrats registered than Republicans,” said Lichtman, “so they’re calling out fraud where it didn’t occur.”

For months now, Republicans have been claiming that voter fraud is rampant and that government officials aren’t sufficiently cracking down. Democrats insist that voter fraud is practically nonexistent –- the real problem is intimidation and harassment of voters at the polls, they say.

Voting-rights experts tend to agree with the Democrats. A study by the Brennan Center for Justice, for example, found that, “It’s more likely that an individual will be struck by lightning than that he will impersonate another voter at the polls.”

Another study, by Barnard College political scientist Lori Minnite, similarly concluded that voter fraud is “extremely rare.” The Brennan Center also showed that the sort of strict rules advocated by Republicans in Wisconsin, Ohio and elsewhere would disenfranchise thousands of people -– usually the poor, elderly and minorities.

Even the most rigorous studies, however, haven’t made the issue any less of a political football. Republicans like Cleta Mitchell, an election lawyer who chairs the Republican National Lawyers Assn., says such experts are just part of “the professional vote-fraud deniers industry,” insisting that voting fraud exists even if it’s nearly impossible to prove.

“If you just deny it,” Mitchell said, “then that means that anyone who wants to take any steps to protect the integrity of the process can only be doing that because they’re a racist.”

In fact, even official Justice Dept. policy had acknowledged until recently that individual voter fraud has “only a minimal impact on the integrity of the voting process” and therefore usually wasn’t worth trying to prosecute. Then last year, the Bush administration changed that to allow individual prosecutors to pursue such cases at their discretion.

When some U.S. attorneys refused because of a lack of evidence, several were fired, contributing to the scandal that ultimately forced the resignation of Atty. Gen. Alberto Gonzales. Since then, Democrats have become even more vigilant in fighting back against claims of voter fraud.

In many states — including Florida, Ohio, Wisconsin and Oregon — Republican officials have insisted that states square new voters’ registration information with that in other state databases, such as motor vehicle or Social Security. While such matching is required by the Help America Vote Act of 2002, Republicans in swing states are insisting that the match be exact as a condition to vote.

Some of these “no-match, no-vote” states allow voters whose registration doesn’t match to fill out a provisional ballot, but they must provide matching verification information to election officials within 48 hours or their votes won’t count. In close swing states, which votes are counted could make all the difference to the outcome.

In Ohio, for example, Republicans sued Secretary of State Jennifer Brunner to make matching a condition of voting. In response, she argued that adopting such a rule could get some 200,000 Ohio voters kicked off the rolls. The problem is not that they’re ineligible, for the most part. It’s that the information doesn’t match because voters have changed their names or because state workers have made clerical errors.

Attorney General Michael Mukasey (WDCpix)

Earlier this month, the U.S. Supreme Court sided with Brunner. Ruling on procedural grounds, it found that the state GOP likely didn’t have the right under federal law to challenge the Ohio law’s application. So Ohio Republicans are taking their fight elsewhere. Last week, they sent a letter to U.S. Atty. Gen. Michael Mukasey asking him to force Ohio to require matching under federal law.

And on Friday, President George W. Bush himself got involved, asking Mukasey to investigate the status of the 200,000 non-matching Ohio voters.

The Republican attorney general in Wisconsin brought a similar challenge against his state’s elections board, but it failed last week. (The attorney general plans to appeal the decision.) A Dane County judge ruled that, “Nothing in state or federal law requires that there be a data match as a condition on the right to vote.” A matching requirement, the elections board had found, could have disenfranchised more than 20 percent of Wisconsin’s registered voters.

Republicans have lost most of their legal challenges claiming states aren’t adequately protecting against voter fraud. But legal experts worry that the steady barrage of legal attacks in battleground states is part of a broader effort to lay the groundwork for undermining the legitimacy of the outcome of the presidential election. That could further fuel the anger of the Republican base against the Democratic candidate — and possibly the next president.

“If it’s close, and if, in the grand scheme of things, Ohio would make a difference in the Electoral College or the finally tally, all these aspersions could come into play in challenging those results,” said Davis, the Ohio ACLU attorney. Either party could bring a legal challenge questioning the validity of provisional or absentee ballots.

While experts say it’s rare to see the sort of scenario that occurred in Florida in 2000, where the outcome of the presidential election hinged on a few hundred votes in one state, the increased focus on voter problems and recent changes in voting laws means litigation over the outcome remains a real possibility.

“Besides Florida, you’d have to go back to the 19th century in the United States to get to an election that was that close,” said Daniel Tokaji, a law professor at Ohio State University and an expert in election law. “Then again, in 2004 we weren’t that far away — there were about 100,000 votes in Ohio on which the outcome depended. If we’d had a second litigated election in 2004, it would have been like lightning striking twice. So it could happen again.”

Because of the close elections and revelations of voting problems in 2000 and 2004, said Tokaji, “we’ve got people paying much closer attention to the mechanics of elections.” Also, “there are a lot of changes in the law. That always leads to more litigation, because there are issues of how those laws should be interpreted and applied.”

Even if the election weren’t close enough to merit legal challenges, many Democrats worry that the GOP claims of voter fraud are a preemptive attempt to undermine the legitimacy of a Barack Obama presidency.

“It’s a desperate attempt to unfairly flavor and throw something out there and take people away from the real issues,” said Lichtman of the Florida Democratic Party. Florida’s voter registration rules, which require all voter registration information to match the state databases, have been the subject of ongoing litigation.

The History of Voter Fraud

Claims of voter fraud before an election are nothing new, of course. For centuries, strict-voter registration rules have been applied to limit access to voting, often targeting the poor and minority citizens.

“We’ve seen it throughout American history,” said Tokaji. “In the 19th century, claims of fraud were made to exclude immigrants, ethnic minorities and laborers. And throughout most of the 20th century, the disenfranchisement of African-Americans in the South was done through voter-registration requirements that local officials claimed were to prevent voter fraud.”

More recently, Republicans have been claiming widespread voter fraud to tighten requirements on who can vote. “They’re trying to use the so-called epidemic of voter fraud to justify voter ID laws,” said Gerald Hebert, a senior elections official at the Justice Dept. from 1973-1994 and who is executive director of the Campaign Legal Center, a nonpartisan organization focusing on election reform.

That’s how Indiana came to pass its voter-identification law. When that law was challenged, the Supreme Court acknowledged there was no evidence of voter fraud in Indiana. Still, the court upheld, by a vote of 6 to 3, the state’s requirement that voters present a state-issued photo identification card before casting a ballot, finding that it did not impose an unjustified burden on the poor, minorities or others less likely to have such a photo ID

Associate law professor Michael Pitts at Indiana University studied the effects of the new law. He found the votes of 80 percent of Indiana residents forced to fill out a provisional ballot because they didn’t have the required I.D. card were never counted.

The ACORN Controversy

Recent revelations that some workers from the Assn. of Community Organizations for Reform Now, or ACORN, have turned in fraudulent registration forms has fanned the flames of this dispute, leading to calls for more voter-identification laws, as well as no-match, no-vote requirements.

But Republicans’ claims against ACORN have gone further. Legislators and party officials have used the false registrations to claim that ACORN is engaging in an effort to steal the election for the Democratic Party. Investigations of fraudulent activity are going on in at least 10 states, and the Justice Dept. has reportedly begun an investigation of ACORN, a community-organizing group that advocates on behalf of low-income families, following requests from numerous Republicans.

Sen. John Cornyn (R-Tex.), for example, a member of the Senate Judiciary Committee, wrote to Mukasey earlier this month, urging him to investigate ACORN as a “criminal enterprise.”

The Obama campaign and former Dept. of Justice lawyers involved in voting-rights issues say such an investigation before the election might intimidate legitimate voters and violate Justice Dept. policy.

ACORN has repeatedly explained that when its workers submitted false registrations, the fraud was against ACORN, not against voters or the elections process. That’s because the duplicate or made-up registration forms were mostly turned in by workers who ACORN paid to sign up voters in their neighborhoods.

That some of those workers copied names out of the phone book, or listed their favorite cartoon characters, doesn’t mean those people are going to show up to vote. But it does mean that ACORN didn’t get it’s money’s worth. The group checks all submitted registration forms and flags for local election officials those that are suspect. In most states, it’s still required by law to turn all forms in.

“The overwhelming evidence is that fraudulent voter registrations do not lead to fraudulent voting,” said Wendy Weiser, a deputy director specializing in voting rights at New York University’s Brennan Center for Justice. “It’s a big resource drain on election officials, but it doesn’t affect the outcome.”

That hasn’t stopped the allegations. Sen. John McCain’s claim in the last debate that ACORN is potentially committing “one of the greatest frauds of voter history in this country, maybe destroying the fabric of democracy” has helped set the stage for broad claims of a stolen election after Nov. 4.

McCain’s remarks were followed by violence. Within days, two ACORN offices were vandalized, and one organizer received a death threat. People for the American Way reports that ACORN offices have received a barrage of racist and threatening voicemails and emails.

ACORN’s own exaggerations about its effectiveness in registering voters haven’t helped. Last Thursday, the group admitted it had vastly overstated the number of legitimate new voters it registered this year, acknowledging that about 30 percent of the 1.3 million new voters it had claimed credit for were either duplicates or not real.

Though some percentage of erroneous applications is expected, both the large number of registered voters and the colorful news stories — about how characters like Mickey Mouse have registered, for example — encouraged Republicans to keep hammering away at charges that the liberal-leaning group, which advocates on behalf of low-income Americans expected to favor Sen. Barack Obama, is planning to steal the presidential election for Democrats.

Given the latest polls, it probably wouldn’t need to. But election lawyers worry that the problems of voter registration by groups like ACORN provide an easy way for Republicans to later claim, if Obama wins, that he’s not the legitimate president.

“It does seem like there is an attempt to cast the specter of voter fraud over this election,” said Hebert. “Like there’s an attempt to get people all riled up in the base of the Republican Party, to say, ‘We’re not going to let people steal our election.’”

Old Bag of Nails, Columbus, OH (Flickr: Ubi Desperare Nescio)

COLUMBUS, Ohio — Dusk was falling in Upper Arlington, an affluent Columbus suburb, as members of the Wicked Investment Club gathered in the back dining room of Old Bag of Nails, a bar tucked into a stone strip mall. It looked like the kind of place that Alaska Gov. Sarah Palin talks about when she speaks of the real America. Posters of the local high school sports teams decorate the entrance — football players with their arms fiercely crossed, field hockey leaders posing without their shoes — and the air is thick with the smell of beer and fried fish. On TV screens, ESPN and CNBC compete for patrons’ attention.

For 19 years, the Wicked Investment Club, whose members are, for the most part, retired, have met each month through bear and bull markets. They have seen the dot-com bubble come and go. More recently, the women’s group watched their portfolio — to which they each give $35 a month — drop with the failing fortunes of the rest of the nation.

Members were having dinner at the bar before their official meeting at the library across the street They were talking about what everyone talks about these days — presidential politics.

Illustration by: Matt Mahurin

“I’ve been over-surveyed to death,” Wicked president Cay Friedman said. “But this most recent one was just awful. I pick up the phone, and this woman, chomping on gum, asks, ‘So, Cathy, are you going to vote for Obama?’ She didn’t identify herself, and she’s calling me Cathy, not Cay or Catherine. I said, ‘Well, that’s pretty personal, why do I have to go behind the sheet and vote?’”

“Do you answer truthfully?” asked fellow Wicked member Carolyn Focht. “I just lie to send them astray.”

Later in the dinner, Molly Schmied, by far the youngest club member, asked no one in particular, “If a recession is two quarters of economic decline, then what’s a depression?”

“It’s when it’s time to jump off the Golden Gate Bridge,” Focht replied.

Similar conversations are probably taking place in similar bars, as well as at wine tastings and regular group dinners at restaurants, all over Ohio — which is the point. If ever there was a state that had earned the name battleground, it’s Ohio.

It is a state with three major markets and many mid-size ones; with a Rustbelt economy in the northeast collapsing and a nervous white-collar workforce in the southwest. It is a state where the concerns of Appalachia weigh heavy in the southeast regions and here in increasingly cold Columbus, which is a microcosm of America. Candidates find it difficult to compete in the state, for distrust of the other side reigns supreme.

The last two presidential elections were decided by close margins, and conflict is always just below the surface. When it came time to reward land to those who fought in the Revolutionary War, it was New Englanders who were given their share in north Ohio, while the south went to Virginians. During the Civil War, the north stood as a Union stronghold, while the southwest, where I spent my youth, had more than its share of Confederate sympathizers.

Here is where “Iowa meets New Jersey,” as Democratic strategist Greg Haas told me.

“Ohio is a great representation of the entire nation,” said Deidra Reese, executive director of the League of Women Voters here. “We’ve got urban areas and rural areas, very poor ones close to very affluent ones. We literally run from one end of the spectrum when it comes to the diversity of lifestyles and interests. You can’t judge and say, ‘Ohio’s going to do this. You just can’t.”

And yet both candidates must make Ohio work for them. We are less than two weeks away from perhaps the most important general election in decades, and the state remains one that either Sen. Barack Obama or Sen. John McCain could take on his road to the White House.

Four years ago, when Iraq was the No. 1 issue in the rest of the country had, polls said Ohioans put economic fears ahead of national security. While campaigning with Obama this summer, Ohio Gov. Ted Strickland remarked something like, “As goes Ohio, so goes the country.” As the rest of the country stares down economic collapse, people here may have found the one issue that can unite them — economic distress.

Obama has opened up a small lead in the state, has motivated millions to register to vote and has made inroads in traditionally Republican district. But people in this state have seen fortunes change before.

“I remember four years ago, in Upper Arlington, seeing [John] Kerry signs on lawns where I’d never seen Democratic signs before,” said homemaker Beth Taggart, as we spoke not far from the statehouse on Tuesday afternoon. “The next morning, when I heard Kerry had conceded Ohio, I was with my sister eating breakfast at Bob Evans. And I looked around and asked, ‘Who are all these people who voted for Bush?’ I felt like a stranger in a strange land, like it wasn’t even my country anymore.”

“The state is still up for grabs,” said Herb Asher, an emeritus professor of political science at Ohio State University. “Both candidates have a reasonably good organization in place. Obviously, they both have to make sure to mobilize their base. But the other thing they have to do is connect to that middle ground. They have to connect with them on what is the major issue of the day — and that is the economy. How do you tap into voter fear? Voter anger?”

These are questions that candidates must deal with in other states, of course. But Ohio, perhaps more than any other state, represents the aspirations and fears of the country; it also is a place where mistrust finds a deeper resonance.

Because of the closeness of the 2000 and 2004 presidential elections, many — particularly African-Americans — accuse Republicans of conspiring to throw out, or simply ignore, votes that would have give the state to Al Gore and, four years later, to Kerry. This time around, one cannot watch local TV news more than a few minutes without seeing one of two stories: how Ohio State can beat No. 3-ranked Penn State Saturday, and how Republicans are poised to challenge the validity of ballots cast in early voting through Nov. 4.

Early Tuesday afternoon, I sat with Peg Rosenfield, the elections specialist for the League of Women Voters of Ohio, in the basement cafe of the state capitol. Rosenfield tended to shrug them off the most recent charges of voter fraud by state Republicans, instead blaming registration irregularities or stupidity — not dark complicity.

Misspellings, clerical errors, the Assn. of Community Organizations for Reform Now, or ACORN, hiring workers who simply didn’t care about the integrity of the voting process — those were the real issues behind supposed registration fraud, according to Rosenfield. She and others in the league spoke about the better preparedness of poll workers — which, as a matter of full disclosure, includes my mother — and other protections.

What most concerned Rosenfield was the potential for voter suppression and intimidation — tactics used in the Jim Crow South to keep African-Americans from exercising their right to vote at the dawn of the civil-rights movement. It was supposed to be a thing of the past, viewed in black-and-white when scrolling through grainy microfiche. Instead, Rosenfield said, it is something real — beginning with lawsuits she believed were filed in part to make first-time voters uncomfortable.

That made her scared of what might possibly happen should the race narrow, as one might expect.

“What really worries me is if it’s really close in Ohio, and if the state is going to make a difference,” Rosenfield said. “If it’s close in Ohio, and neither candidate has enough votes to win in the Electoral College, it’s going to make Florida in 2000 look like a family picnic. They’re just going to descend on us. That worries me. And nobody seems to worry about it. And it’s a very real possibility.

“There’s a prayer that election board members have,” Rosenfield said. “It goes something along the lines of, ‘Dear Lord, I don’t care who wins, but let it be a landslide.’ Because if you lose a close election, the losing party always thinks they have votes taken away from them. They can’t accept that their candidate didn’t get as many votes as the other one.

“The truth is,” Rosenfield said, “there are enough checks and balances to make sure the system goes right. And because we have close elections in Ohio — from school board seats to county commissioner — we really do know how to do recounts.”

That is the last thing anyone in this state wants.

A sense of weariness hangs over Ohio, like a night that will not end. The Obama and the McCain campaigns have poured millions into the state, and the effects of all that money have begun to show up in the minds of even the young. After dinner, before the members of the Wicked Investment Club could get down to business, Molly Schmied told a story about her young son picking up a magazine with Obama’s picture on it and blurting out, “I’m Barack Obama and I approve this message.”

Following the chuckles, the group settled down to business. They looked over their portfolio, spoke about potential buys. Of all the stocks listed, only one had increased over the past month. This was not a terribly nervous bunch — one got the sense they were in it as a kind of sport — but they were concerned enough. The market had failed them, as it had millions of others like them.

Toward the end of the evening, they chose to buy shares in one company. Choosing the man to lead them from this crisis will come soon enough.

According to local media in counties in each of these states — in Columbus, Ohio, Marion County, Ind., and Volusia County, Fla. — GOP operatives say they haven’t ruled out challenging people whose homes are being foreclosed on in the current financial crisis, claiming that they’re no longer residents of the district where they’re voting.

In fact, as members of ACORN explained on a conference call with reporters on Wednesday, many homeowners going through foreclosure proceedings still live in their homes, while they try to negotiate an arrangement with the bank that holds their mortgage.

Though Republican officials in Michigan earlier this week signed an agreement with the Obama campaign saying they would not use foreclosure lists to challenge voters in that state, the National Republican Committee has not made the same promise regarding challenges in other states.