The biggest fraud of all

Perhaps out of some vain desire to witness or shape the grand unfolding of history, pundits, commentators and even candidates themselves tend to ramp up the significance of each presidential election. Every four years, it starts to seem as though the contest between the two candidates isn’t just a race for the White House but a defining moment in the forging of the American future.

2012 is no exception. Look no further than the presidential debates, where President Obama has stopped at nothing to cast his presidency in monumental terms. “You know,” he told some 40 million viewers, “four years ago we went through the worst financial crisis since the Great Depression. Millions of jobs were lost; the auto industry was on the brink of collapse. The financial system had frozen up. And because of the resilience and the determination of the American people, we've begun to fight our way back.” In defending his tax plan, Mitt Romney has highlighted the uniqueness of his vision: “Let’s look at history,” he said. “My plan is not like anything that’s been tried before.”

Journalists from The Hill’s Bob Cusack to The Washington Post’s Ezra Klein have substantiated the claims for the significance of 2012. According to Klein, this year’s contest is “likely to be the one that matters for ratifying policy and for gaining the majorities needed to make it for a long time to come.”

The truth is that it’s far too early to tell what the lasting significance of November’s election will be. Even without hindsight, however, there is something unprecedented about 2012: the spate of voter ID laws either passed or considered in 37 states since 2010. These are an assault on American democracy; they constitute the most nakedly partisan attempt to restrict the franchise since the Voting Rights Act of 1965.

In the two years since the Republicans’ legislative resurgence, these laws have sought to require a valid government-issued photo ID at the polls. Their official justification remains that ID requirements are the best way to combat “voter fraud,” or in-person impersonation at the ballot box. As the conservative columnist John Fund and the Heritage Foundation’s Hans von Spakovsky (the subject of a profile in the current New Yorker) argue in their new book, Who’s Counting: How Fraudsters and Bureaucrats Put Your Vote At Risk, “the United States has a haphazard, fraud-prone election system more befitting an emerging Third World country than the world’s leading democracy.” They claim that “the refusal to insist on simple procedural changes like requiring a photo ID to vote […] accelerates our drift toward banana-republic elections.”

The problem, however, is that there’s next to no evidence that this kind of fraud ever actually occurs: both a comprehensive Justice Department investigation and a News21 analysis of each reported case since 2000 found that impersonation fraud is "virtually nonexistent.” People are more likely to be struck by lightning on their way to the polls than they are to pretend to be someone else when they vote. The real impetus behind these laws, then, is far less noble than protecting the fabric of “the world’s leading democracy.” It's exactly the opposite.

After all, it’s no secret which voters are likely to be most affected by these measures. Procuring the necessary ID (such as a driver's licence) can be costly and presents a major logistical challenge for the poorest Americans. It’s also widely acknowledged that these same voters are more likely to support Democratic candidates, and that they contributed to Obama’s victory in 2008. In June, Mike Turzai, Pennsylvania’s House Republican leader, essentially admitted as much. Running through a checklist of Republican policy goals to achieve, he included, “Voter ID, which is gonna allow Governor Romney to win the state of Pennsylvania, done.”

But the only fraud at stake is the idea of “voter fraud” itself. Richard Hasen, an election law expert at the University of California-Irvine, makes this point forcefully in his new book, The Voting Wars: From Florida 2000 to the Next Election Meltdown. While he agrees with Fund and von Spakovsky that the voting system in the United States is in dire need of attention, Hasen also identifies the voter ID laws—and, more generally, the “voter fraud” they purport to address—as major contributors to public disillusionment with the voting process.

To that end, perhaps the most significant achievement of Hasen’s book is that it chronicles, for the first time, the origins of the “voter fraud” myth, following its development from the conservative fringes all the way to the chambers of the Supreme Court. Particularly revealing are his pages on the American Center for Voting Rights, which was essentially a website under the leadership of Thor Hearne, the Bush-Cheney Reelection Committee’s national counsel, that propagated numerous inaccurate testimonies on voter fraud before Congress. Although the studies were eventually discredited, the idea itself never was.

As Hasen points out, even without proof that impersonation fraud actually existed the myth of its existence managed to creep its way into the Supreme Court’s majority opinion in Purcell v. Gonzalez (2006), in which the Court declared—without conclusive evidence—that “voter fraud drives honest citizens out of the democratic process and breeds distrust of our government.” Two years later, the Court would use similar reasoning in Crawford v. Marion County Election Board, when it upheld Indiana’s voter ID law on the grounds that doing otherwise might challenge “citizen participation in the democratic process.”

“It was a lovely theory,” Hasen writes of the Court’s opinions, “but there was no evidence to back it up.” Even still, the damage was done: in a Harvard Law Reviewstudy, a quarter of respondents believed voter fraud to be “very common.”

It’s true that perceptions of voter fraud create a “toxic brew” for trust in democracy. But, as Hasen points out, surely the reason so many Americans—including the majority of the Supreme Court justices—have come to believe in the myth of voter fraud has something to do with the effort that has gone into constructing it.

So far, ten states have actually passed some form of a voter ID law, although challenges have prevented some of them from taking effect in this election cycle. These restrictions represent a truly significant shift. After all, twelve years ago, the historian Alexander Keyssar concluded in his monumental history of the franchise, The Right to Vote: The Contested History of Democracy in the United States, that the United States had more or less stumbled onto universal suffrage in the ten years after the passage of the Voting Rights Act in 1965. “What occurred in the course of a decade,” he wrote, “was not only the reenfranchisement of African Americans but the abolition of nearly all remaining limits on the right to vote.”

2012 is the first election in recent memory where Keyssar’s conclusion no longer seems true. Restrictions to the franchise are back, albeit in different form. Regardless of who wins in November, that—if nothing else—is something for the history books.