August 11, 2009
A long-time federal prosecutor once told me that as long as
elections put people into positions where they can make decisions
about how much the government will spend, who will receive the
money, and how the government will exercise its power, elections
will be important enough to tempt some individuals to steal them.
As the Supreme Court recognized when it upheld the
constitutionality of Indiana's voter identification law in 2008,
flagrant examples of voter fraud "have been documented throughout
this Nation's history by respected historians and journalists."
Those examples "demonstrate that not only is the risk of voter
fraud real but that it could affect the outcome of a close
The United States has one of the most decentralized systems of election administration for its national elections of any democracy. Unlike many other countries, we do not have a central government agency administering our federal elections. This is in accord with the Constitution, which reserves to the states the exclusive authority for most election decisions, including voter qualifications, except that Congress may alter "[t]he Times, Places and Manner of holding Elections" for Congress. Even the relatively new U.S. Election Assistance Commission, created in 2002, does not have the authority to "issue any rule, promulgate any regulation, or take any other action which imposes any requirement on any State or unit of local government." It can only recommend "best practices" in election administration to the states, an interesting charge given that most of the employees of this federal agency (and some of the commissioners) have absolutely no experience in actually administering elections. The states are still the chief administrators of our elections, although Congress has passed various federal laws in recent decades regulating election procedures, including the National Voter Registration Act of 1993 (NVRA) and the Help America Vote Act of 2002 (HAVA).
In order to have an election process in which we can be confident that everyone who is eligible gets to vote, the vote is counted, and the vote is not diluted by fraudulent votes, we have to have security and integrity throughout the entire process, from voter registration to the casting of the actual votes and the counting of ballots. Unfortunately, because of various problems with election laws and procedures in many states, we cannot currently ensure that such security is in place. This is particularly true because of the general lack of verification by some states of the authenticity of both basic voter eligibility at registration, including citizenship, and the identity of voters who show up at the polls to vote.
State legislators can take several steps to safeguard America's election system and to improve the integrity of the election process. Based on my experience as a local county election official administering voting registration and elections in the largest county in Georgia; as a career lawyer in the Civil Rights Division of the U.S. Department of Justice enforcing federal voting rights laws like the NVRA and HAVA; and as a member of the Board of Advisors of the U.S. Election Assistance Commission, I would recommend the following legislation or regulations. While there are some steps that only Congress and the federal government can take, these are improvements to voter registration and voting procedures that states can implement.
For states covered under Section 5 of the Voting Rights Act, Georgia's voter identification law provides a good model. Not only was Georgia's law precleared without objection by the U.S. Department of Justice, it has also been upheld in federal court as both constitutional and not a violation of the Voting Rights Act. That will make a law modeled on Georgia's law much harder to oppose successfully in litigation by groups opposed to voter identification requirements or a U.S. Department of Justice led by ideological partisans opposed to voter identification requirements from a public policy perspective.
One final warning to state legislators: Pass resolutions urging your congressional representatives to oppose legislation that will impose further federal requirements on how you conduct your elections or would give the U.S. Election Assistance Commission the power to regulate elections. There are many proponents in Washington who would like to see a complete federal takeover of the administration of elections. From overruling state laws barring felons from voting, to requiring states to implement same day (or election day) registration, these groups want to impose such federal mandates on all of the states.
One of the current proposals that is gathering momentum is "universal registration," a concept that would force states to automatically register individuals who are contained in driver's license records, tax lists, public assistance and welfare rolls, and other such databases. This concept is being pushed based on the fallacy that large numbers of individuals were unable to vote in the 2008 election because of voter registration problems. This claim is supported by almost no evidence other than an academic survey that used very questionable methodologies, and did not determine whether individuals who reported not voting due to "registration" problems ever attempted to register or were even eligible to register or vote. The contrary evidence is much more powerful: The Census Bureau just reported that there was an increase of 4 million registered voters in 2008 from the 2004 election and voter turnout increased by 5 million voters.
Driver's license, public assistance, and tax rolls all contain individuals who are not citizens, are mentally incompetent or are felons, making them ineligible to vote under most state laws. Yet universal registration would automatically register such ineligible individuals and give them the ability to vote. Many people own property in more one location or pay taxes to more than one political jurisdiction. Universal registration would automatically register them in more than one location, allowing them to vote more than once. Universal registration would thus automate voter registration fraud and decrease the security and integrity of our election process to deal with a nonexistent problem.
This push for universal registration is especially ironic given that many of its proponents are the same liberal groups that have filed lawsuits, some successfully, trying to stop states from verifying the accuracy of new voter registration information by running data matches with other state records such as driver's license databases. They claim that those records are too inaccurate and cause large numbers of mismatches, disenfranchising voters. Yet nowthese same groups claim those records are accurate enough to be a source of automatic voter registration. These views are totally inconsistent. State legislators should oppose any attempt to force states to implement universal registration unless it is done in such a way as to verify the identity, residence, eligibility, and citizenship status of each registrant, and will avoid duplicate registrations in more than one location. That will be the only way to ensure the accuracy of voter registration lists.
These are all relatively simple steps that can be taken by state legislatures, but they are very important to protecting our democracy from errors and intentional fraud that can affect the integrity and security of our election process.
Hans A. von Spakovsky is a Legal Scholar in the Center for Legal and Judicial Studies at The Heritage Foundation. He is a former Commissioner on the Federal Election Commission and former Counsel to the Assistant Attorney General for Civil Rights at the U.S. Department of Justice.
Crawford v. Marion County Election Board, 128 S.Ct. 1610, 1619 (2008).
U.S. Const. art. I, §4, cl. 1. Congress has less power to regulate the election for President, being limited to determining the "Time" of choosing electors and the "Day" when they give their votes. Id. art. II, §1, cl. 4. By subsequent constitutional amendments, states may not discriminate on the basis of race, ethnicity, gender and age over 18, but Congress still may not interfere with state laws disqualifying noncitizens and certain felons from voting, despite the claims of many activists. See generally id. amend. XIV, § 2.
42 U.S.C. § 15329.
Voter identification can prevent impersonation
fraud, voting under fictitious names, voting by illegal aliens, and
voting by individuals registered in more than one state. See
Hans A. von Spakovsky, Stolen Identities, Stolen Votes: A Case
Study in Voter Impersonation, Heritage Foundation Legal
Memorandum No. 22, March 10, 2008, available at http://www.heritage.org
During litigation over Indiana's and Georgia's
voter identification laws, the plaintiffs were unable to produce a
single individual who would be unable to vote because of the
identification requirements. See alsoRobert Pastor, et al.,
Voter IDs Are Not the Problem: A Survey of Three States (2008),
available at http://www.american.edu/ia/cdem/csae/pdfs/
csae080109.pdf. This survey found that across three states, Mississippi, Maryland and Indiana, less than 1 percent of all voters did not have the required identification, and the number was even smaller (only 0.3 percent) in Indiana, the state with the strictest identification rules. Id at 9, 15.
See David B. Muhlhausen and Keri Weber Sikich, New Analysis Shows Voter Identification Laws Do Not Reduce Turnout, Heritage Foundation Center for Data Analysis Report No. 07-04, Sept. 10, 2007, available at http://www.heritage.org/research/legalissues/cda07-04.cfm; Hans A. von Spakovsky, Voter ID Was a Success in November, Wall St. J., Jan. 30, 2009, available at http://online.wsj.com/article/SB123327839569631609.html.
Robert Pastor, et al., supra note 6, at 3.
Section 5 requires certain covered states to submit any changes in voting procedures either to the Justice Department or to federal court in Washington, D.C., for preclearance before they can take effect. 42 U.S.C. § 1973c.
Ind. Code § 3-5-2-40.5 (2009).
Crawford, 128 S.Ct. 1616. Indeed, emotional opponents of voter ID should reflect instead on the simple logic of Justice Stevens's opinion for the majority in Crawford.
Ga. Code Ann. § 21-2-417.
Common Cause v. Billups, 554 F.3d 1340 (11th Cir. 2009), cert. denied (June 8, 2009).
See Hans A. von Spakovsky, The Threat of Non-citizen Voting, Heritage Foundation Legal Memorandum No. 28, July 10, 2008; http://www.heritage.org/static/reportimages/A32D2D7A602C58E755F75A05599E4A5B.pdf.
Gonzalez v. Arizona, No. 06-1268 (D. Ariz. August 20, 2008). The case is on appeal to the Ninth Circuit Court of Appeals. Arizona's law requires both proof of citizenship and identification at the polling place. SeeAriz. Rev. Stat. §§ 16-166(F), 579(A). Georgia's legislation is House Bill 139, amending Ga. Code Ann. § 21-2-6, and it has not yet been reviewed by the Justice Department.
The Secretary of State was sued by the Ohio Republican Party under HAVA; however, the Supreme Court vacated a stay that had been issued by the Sixth Circuit Court of Appeals directing her to comply with the law because the Supreme Court held that a private party was not "likely to prevail on the question whether Congress has authorized...a private litigant" to bring an action under HAVA. Brunner v. Ohio Republican Party, 555 U.S. ___ (2008). This leaves it up to the Justice Department to enforce this particular requirement of HAVA.
42 U.S.C. § 1973gg-4(c).
See id. § 1973ff-1 and §1973ee-1.
42 U.S.C. § 15483(b). There are certain exceptions, including for individuals entitled to vote under the Uniformed and Overseas Citizens Absentee Voting Act.
See also Hans A. von Spakovsky and
Eric Eversole, America's Military Voters:
Re-enfranchising the Disenfranchised, Heritage Foundation,
Legal Memorandum No. 45, July 28, 2009, available at http://www.heritage.org
See Press Release, Kentucky Secretary
of State, Kentucky Blazes Path in New Voter Fraud Prevention
Technique (April 24, 2006), available at http://sos.ky.gov/secdesk/mediacenter/pressreleases/article41.htm;
Russ Buettner, City Mulls Action Against Two-Timing Voters,
N.Y. Daily News, Aug. 24, 2004, available at http://www.nydailynews.com/archives/news/2004/
08/24/2004-08-24_city_mulls_action_against_tw.html; 60,000 Could Be on File to Vote in Both Carolinas, The State, Oct. 25, 2004, at A1.
It is human nature to make up excuses for failing to vote, but such excuses must be tested by social scientists if they are really interested in finding the truth rather than pushing a nationalization agenda.
Press Release, U.S. Census Bureau,
Voter Turnout Increases by 5 Million in 2008 Presidential Election
(July 20, 2009), available at http://www.census.gov/Press-Release/www/releases/archives/voting
See, e.g., Brennan Center for Justice at NYU School Of Law, Using Databases to Keep Eligible Voters Off the Rolls (2006), available at /static/reportimages/45A18EC3E200EFE16EE6FF3E27EB6477.pdf.
This article is based on a presentation made at the annual meeting of the American Legislative Exchange Council in Atlanta, Georgia, on July 17, 2009, on a panel with John Fund of the Wall Street Journal and Bob Williams of the Evergreen Freedom Foundation. Many of these legislative recommendations first appeared in an article by the author under the name Publius. See Publius, Securing the Integrity of American Elections: The Need for Change, 9 Tex. Rev. L. & Pol. 227 (2005).