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Florida 2000 Redux?


Illustration by Matt Mahurin

You know it’s going to be a heated election when a state attorney general sues his own state agency for not cracking down on voter fraud. But that’s just what’s happened in Wisconsin. It’s indicative of the kinds of legal challenges now being brought in hotly contested states around the country. The outcomes of those challenges will decide whose votes get counted and whose don’t — and in a race as close as this one, that could make all the difference.

In each case, Republicans claim voter fraud is rampant and the government has to crack down on it. Democrats, meanwhile, argue it’s rare – and far less of a problem than intimidation and harassment of voters at the polls.

Image has not been found. URL: http://www.washingtonindependent.com/wp-content/uploads/2008/09/law.jpgIllustration by: Matt Mahurin

In Wisconsin, Atty. Gen. J.B. Van Hollen – a Republican and the state co-chair of Sen. John McCain’s presidential campaign — has sued the state’s Government Accountability Board, a non-partisan group of former state judges responsible for implementing the election laws. Van Hollen insists that the board’s failure to require that the identifying information which voters used to register matches the information contained in a new statewide voter database is a violation of the federal Help America Vote Act (HAVA) of 2002.

“The statewide computerized voter registration list required by HAVA includes thousands, if not tens of thousands, of names whose information has not been verified through the HAVA checks mandated by Congress and required by state law,” Van Hollen said when he filed the case. “Unless action is taken by the Wisconsin Government Accountability Board, these names will remain on the list during the Nov. 4, 2008 presidential election and there is a significant risk, if not a certainty, that unlawful votes will be cast and counted.”

The federal law requires states to create a computerized statewide voter registration list that contains the name and identifying information of every legally registered voter. It does not, however, require that information on already-registered voters match the information in the new database.

For good reason. Personal data often doesn’t match — not due to any voter fraud, but because voters used a married or hyphenated name or nickname; or because of typographical errors by state workers entering the information into the database.

As a result, the handful of states that have mandated matching have found themselves facing a logistical nightmare. In Washington state, between 16 percent and 30 percent of registered voters in each county did not match the state database. In Florida, some 20,000 voters were denied or delayed in voting on that basis in 2006. Both ended up getting sued for making the match mandatory and so disenfranchising tens of thousands of voters.

In Wisconsin, after 22 percent of voters’ registration information did not match the state’s database – including data on three of the six judges on the accountability board — the board decided that trying to match everyone to the database by November would be impossible. The database wasn’t even completed until Aug. 1.

“To immediately require that every voter registered since January 2006 be matched against the state database,” Kevin Kennedy, the board’s director and general counsel wrote to Van Hollen in August, “could lead to mass confusion at the polls.”

Van Hollen has continued to pursue the suit, however, insisting it’s necessary to prevent voter fraud. “When unlawful votes are cast and counted,” he said when he filed the case, “the power of a lawful vote is diminished.”


But voting experts say voter fraud of this type is extremely rare. “It is more likely that an individual will be struck by lightning than that he will impersonate another voter at the polls,” the Brennan Center for Justice concluded, after conducting a comprehensive study last year.

Meanwhile, the Brennan Center’s studies show that rules like the one Wisconsin’s attorney general is advocating disenfranchise thousands of people – most often the poor, elderly and minorities.

In Florida, for example, where the Brennan Center sued the state on behalf of the state’s NAACP, studies showed that black voters made up 13 percent of all registration applicants, but were 26 percent of all matching problems. Similarly, Latinos were 15 percent of the total voting population, and 39 percent of those blocked; while white voters were 66 percent of the voter applicant pool, but only 17 percent of those whose applications didn’t match.

“The law inevitably leads to higher and heavier burdens being placed on less affluent voters and voters of color,” said Adam Skaggs, counsel for the Brennan Center. “So more of those voters will have their votes not counted in November. And as we saw in 2000, it can take only a couple hundred voters to make the difference in the election.”

That is, of course, why both Republicans and Democrats are fighting so hard now over who gets to vote. In addition to Wisconsin and Florida, there are lawsuits pending in Michigan and Ohio. A suit against Washington state, which had required HAVA matching, was settled earlier this year.

In Wisconsin, “We’ve always tried to make sure that voting was a right and shouldn’t be too hard,” said Joe Wineke, chairman of the Wisconsin Democratic Party. “Republicans are hell-bent on making sure if they can challenge it, they will. Because the higher the turnout, the better the Democrats do.”

Republicans claim Democrats are in denial.

“I refer to this very well-funded adamant organized effort in America as ‘the professional vote fraud deniers industry,’ ” said Cleta Mitchell, an election lawyer who chairs the Republican National Lawyers Assn. “If you just deny it, 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.”

The problem, Mitchell says, is that the National Voter Registration Act of 1993 – known as the motor-voter law – led to huge numbers of registrations. But state officials did not remove people from their rolls when they moved or were otherwise no longer eligible.

“So you literally have jurisdictions in this country where you have more registrations than you have people eligible to vote,” said Mitchell. “People would register more than once. It mightily burdened the elections administration resources.”

Such registration problems don’t mean people are committing voter fraud, however. Experts point out that even if someone moves and registers to vote at their new address without canceling their old registration, there’s no evidence that they actually vote twice.

It’s a point the Supreme Court acknowledged in April, even as it upheld Indiana’s controversial voter identification requirement. “Indiana’s voter registration rolls include a large number of names of persons who are either deceased or no longer live in Indiana,” wrote Justice John Paul Stevens for the majority in Crawford v. Marion County.

Still, there was no evidence that someone was trying to vote on their behalf. “The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history,” Stevens wrote, noting that to do so would be a felony. In fact, to find an example of widespread voter impersonation the court had to reach back to the New York City elections of 1868, in which William (Boss) Tweed sent “repeaters” to vote in different names.

The first case brought by the new Election Fraud Task Force formed by Wisconsin’s attorney general and Milwaukee district attorney, filed Tuesday, actually supports the argument that voter fraud is a red herring. The criminal complaint accuses a city worker of submitting 27 voter registration forms containing false information, including 19 addresses that do not exist. Even if the charges are substantiated, however, unless the 19 people with nonexistent addresses actually show up to vote, such fraud wouldn’t have any impact on the outcome of the election.

“Voter fraud is a huge canard,” said Robert Atkins, a partner at Paul Weiss Rifkind & Garrison who is working with the Brennan Center on the case against Florida. “There’s a long history of systemic attempts to rip off elections. There’s no evidence to support individual efforts of voter fraud. It’s a sham.”

Indeed, until 2007, the Justice Dept. policy was not even to investigate claims of individual voter fraud, on the grounds that it has “only a minimal impact on the integrity of the voting process.”

That policy was changed by the Bush administration to allow prosecution of individuals at the prosecutor’s discretion. Congressional hearings later revealed that some of the U.S. attorneys fired under Atty. Gen. Alberto Gonzales were targeted due to their failure to prosecute claims of voter fraud urged by Republicans in their districts.


In Florida, after fighting the NAACP and others in federal court, state officials agreed to slightly amend its law requiring voter matches.

“Instead of having to start a new registration, now corrections can be made on that existing application up to Election Day,” said Jennifer Davis, spokeswoman for Florida’s secretary of state. “If they still haven’t resolved the issues, they can vote a provisional ballot on Election Day, and they can provide a copy of the relevant ID by mail or in person or by fax the next day.”

There is reason to be skeptical, however. In 2000, according to a Palm Beach Post analysis, Florida wrongly purged about 1,100 people from the voting rolls who were misidentified as state felons. Proof of their eligibility to vote came too late for their votes to be counted. George W. Bush ended up winning Florida, and the presidency, by a mere 537 more votes than Democrat Al Gore.

Even assuming that Florida officials will fairly enforce the new law, “some people don’t have easy access to a fax machine, or have work or family commitments,” said Skaggs of the Brennan Center. And because Florida just started implementing this new rule in September, he worries that thousands of newly registered voters won’t get the right directions of what to do, because there’s so little time to train poll workers.

“There will be many voters that just don’t understand,” said Skaggs, “They will show their license, will be given a ballot and mark it, and will not know they need to do anything more. Many voters just won’t understand they have to do something else to verify it.”

In Wisconsin, the judge on Wednesday ruled that the lawsuit to require a similar matching requirement there can proceed, even though the attorney general suing the elections board is also defending the board in three other lawsuits.

Democrats are concerned. “Based on what we saw in Florida in 2000, and Ohio in 2004, we expect Republicans to spend a lot of time in highly Democratic precincts and use the HAVA test to challenge voters,” said Wineke. “Every time there’s a challenge, it slows the train down. All the people standing in line behind this individual are going to stand in line even longer. And not everybody can stand in line three or four hours to vote.”

“It’s not that we want to have people vote that shouldn’t be voting,” Wineke continued. “We just don’t want people who are eligible to vote unable to vote because of partisan mischief.”

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