March 10, 2008 | Legal Memorandum on Legal Issues
On January 9, 2008, the Supreme Court of the United States heard oral arguments in Crawford v. Marion County Election Board, a case challenging the constitutionality of an Indiana law that requires most individuals who vote in person to present a government-issued photo identification. Indiana's law was upheld by a federal district court and by the Seventh Circuit Court of Appeals.
Critics contend that such laws are unnecessary because "impersonation fraud" at the polling place simply does not exist. It is true that direct evidence of such fraud is hard to come by, but this is for a simple reason: Election officials cannot discover an impersonation if they are denied the very tool needed to detect it-an identification requirement. The Seventh Circuit noted "the extreme difficulty of apprehending a voter impersonator" unless the impersonator and the voter being impersonated (if living) arrive at the polls at the same time, which is a very unlikely occurrence.
Ignoring this point, the editorial page of The New York Times, among others, asserts that "[i]n-person voter fraud is extremely rare." To support this claim, The Times cites the attorney for the petitioners in the Indiana case, Paul M. Smith, who told the Justices that "[n]o one has been punished for this kind of fraud in living memory in this country." The New York Times's position is ironic, since the best-documented case of widespread and continuing voter identity or impersonation fraud comes out of the newspaper's own City of New York.
A 14-Year Vote-Fraud Conspiracy
A striking example of identity fraud at polling places, well within living memory, is described in a grand jury report publicly released in 1984 by the Kings County District Attorney and former Democratic Congresswoman Elizabeth Holtzman. Had it checked its own archives, The New York Times would have found a story from 1984, "Boss Tweed Is Gone, But Not His Vote," that detailed the findings of the grand jury. As that article reported, the grand jury report "disclosed that cemetery voting and other forms of stuffing the ballot box were not buried with Tammany Hall."
The grand jury report revealed extensive voter registration and voter impersonation fraud in primary elections in Brooklyn between 1968 and 1982 that affected races for the U.S. Congress and the New York State Senate and Assembly. According to Holtzman, "[t]he grand jury investigation has uncovered a systematic attack on the integrity of elections in Brooklyn." Holtzman warned that unless there were immediate changes in procedures, there was "a danger that serious fraud could occur in connection with the upcoming election."
This 14-year conspiracy was detailed by witnesses who participated in the fraud and were able to describe in great detail how it was accomplished. The grand jury found evidence of fraudulent and illegal practices in "two primary elections for Congress held in 1976 and 1982, four primary elections for the Assembly in three different assembly districts, three primary elections for the State Senate in one senatorial district and two elections for state committee in two different districts." For 14 years, the conspirators engaged in practices that included:
the forgery of voter registration cards with the names of fictitious persons, the filing of these cards with the Board of Elections, [and] the recruitment of people to cast multiple votes on behalf of specified candidates using these forged cards or the cards of deceased and other persons.
The grand jury explained that "the ease and boldness with which these fraudulent schemes were carried out shows the vulnerability of our entire electoral process to unscrupulous and fraudulent manipulation."
The Tools of Vote Fraud
One of the key factors in the success of this scheme was the "advent of mail-in registration [in New York] in 1976 [which] made the creation of bogus registration cards even easier and less subject to detection." Congress mandated the same type of New York-style mail-in registration nationwide in 1993 with the passage of the National Voter Registration Act, thus ensuring that the security problems caused by unsupervised mail-in registration in New York were spread nationwide. In fact, according to the grand jury, "mail-in registration has become the principal means of perpetrating election fraud" in New York.
Another change in the law that increased fraud was the new practice that allowed any organization to obtain bulk quantities of voter registration forms from the Board of Elections that "contain no identifying serial number at the time they are given out." The conspirators obtained blank voter registration cards and then filled them out with fictitious first names and real last names taken from party enrollment books within the targeted voting precinct:
For example, if a John Brown actually lived at 1 Park Place, Brooklyn, New York, the application would be completed in the name of Mary Brown, 1 Park Place, Brooklyn, New York. It was anticipated that when the mail for the fictitious Mary Brown was delivered to John Brown at his address, John Brown would discard the notice rather than return it to the post office. This plan reduced the likelihood that the voter registration notice card would be returned to the Board of Elections, thereby minimizing the possibility that the fraud would be detected.
This process was also successful because of the way the Postal Service handled the mail. The normal procedure of all election jurisdictions in the United States is to mail a voter registration card to a newly registered voter after the registration application form has been received and processed. Although the primary purpose of the mailing is to provide the new voter with the voter registration card, it is also intended to ensure that a real person has registered and provided an accurate address. The New York Board of Elections thus relied on the Postal Service to return any registration cards that were undeliverable because the registrant was fictitious or did not live at the address on the application form. Election jurisdictions today still rely on the Postal Service for this validation.
However, the grand jury found that "mail carriers did not return these cards particularly where the address on the card was that of a large multiple dwelling…[and] would frequently leave the undeliverable voter registration cards in a common area of the building." To take advantage of this, the conspirators used the addresses of multiple dwellings in which members of their crews lived, which gave them the ability to collect the bogus registration cards. The Executive Director of the State Board of Elections at the time, Thomas W. Wallace, commented that the handling of voter registration cards by the Postal Service varied greatly throughout the state and was a continuing problem for election officials.
In addition to a voter's signature, New York's voter registration application forms at that time included a physical description of the voter- something that is nonexistent on the mail-in voter registration applications used today. Even so, the vote-fraud conspirators avoided detection either by using their own physical descriptions or by providing general descriptions that could be met by numerous people engaged in the scheme.
The fraudulent forms were either mailed or delivered to the Board of Elections, often with a group of legitimate registrations. The grand jury reported that in one 1978 legislative race alone, 1,000 bogus voter registration forms were successfully filed without detection by the Board of Elections. Although New York law required a check at the polling place of the voter's signature, this proved to be no obstacle to this fraud because the persons creating the fictitious voter registration application forms would later vote under the same names, so their signatures at the polling place would match their signatures on the original registration forms.
These attempts to steal elections through the use of fraudulent voter registrations culminated each election day with votes cast using the fictitious cards. One witness testified that he first participated as a fraudulent voter when he was only 17, voting in a legislative primary in 1968 "using a registration card prepared under a different name by a member of the local Democratic club."
In addition to voting in the names of fictitious voters who had been successfully registered, the crews used several other methods of casting fraudulent votes. One method involved voting under the names of legitimate voters. By reviewing the voter registration records at the Board of Elections prior to election day, the conspirators were able to find the names of newly registered voters. Using the names of these voters, the crews would go to the appropriate polling places as soon as the polls opened in the morning to vote under those names:
The reasoning behind this method, according to the experience of one witness, was that newly registered voters often do not vote. By arriving at the polling sites early, the bogus voter would not need to worry about the possibility that the real voter had actually voted.
Another method entailed collecting, during nominating petition drives, the names of registered voters who had died or moved. Members of the various crews were then sent to polling places on election day to vote in the names of those voters. The signature requirement did not prevent such fraudulent voting either, which points out the inadequacy of signature matching (a highly trained skill that cannot be taught in a matter of hours to the average poll worker) to prevent this type of fraud. Credit cards present a similar problem, since the signature requirement on credit cards does not prevent the significant volume of credit card fraud that occurs in the United States.
Database technology is another tool of the trade that was not available then but is widespread now. Voter registration lists are public information in most states, and databases containing detailed information on voters are available from a wide variety of commercial vendors.
The databases of such commercial vendors are usually much more up-to-date than the information contained in the voter registration databases maintained by election officials. This makes it very easy for anyone with access to such information to determine the names of voters who are still registered but who have died or moved out of a jurisdiction. As Justice Roberts pointed out in the Indiana voter ID case, the record in the litigation showed that 41.4 percent of the names on Indiana's voter registration rolls were bad entries, representing tens of thousands of ineligible voters-a trove of potential fraudulent votes.
A Widespread Problem
The widespread impersonation fraud that occurred in Brooklyn raises the question of whether such fraud is a problem elsewhere in the country today. More recent cases provide evidence of what may be a wider problem that is very difficult to detect in jurisdictions that do not require voter identification.
For example, Dr. Robert Pastor, Executive Director of the Baker-Carter Commission on Federal Election Reform and Director of the Center for Democracy and Election Management at American University, testified before the U.S. Commission on Civil Rights in 2006 that he was once unable to vote because someone had already cast a ballot in his name at his polling place. He had no recourse at the poll to find out "why this had occurred, whether there was some error or whatever else, and the polling station itself didn't keep any record of it."
In a 2007 city council election in Hoboken, New Jersey, the former zoning board president noticed a group of men near his polling place being given index cards by two people shortly before the June election. One of those men later entered the polling place and tried to vote in the name of another registered voter who, it turned out, no longer lived in the ward. The imposter was caught only because he happened to be challenged by the zoning board president. He admitted to the police that the group of men from a homeless shelter had been paid $10 each to vote using others' names.
Last year, in a case reminiscent of Boss Tweed and the Brooklyn grand jury report, the U.S. Department of Justice won a voting rights lawsuit in Noxubee, Mississippi, against a defendant named Ike Brown, as well as the county election board. Brown, a convicted felon, was the head of the local Democratic Party. He had set up a political machine that worked to guarantee the election of his approved candidates to local office-essentially his version of Tammany Hall. One of the contentions in the litigation was that the local election board's "failure to purge the voter registration roll to eliminate persons who have moved or died and who are thus no longer eligible voters" increased the opportunity for voter fraud by creating "the potential for persons to vote under others' names." The court cited the testimony of one of the government's witnesses, a former deputy sheriff, who said that "he saw Ike Brown outside the door of the precinct talking to a young black lady…and heard him tell her to go in there and vote, to use any name, and that no one was going to say anything."
Mississippi does not require a photo ID for in-person voting, but it is now under court order to implement such a requirement due to a federal case filed by the Mississippi Democratic Party over its concern that the state's open primary system and lack of party registration makes it unable to identify non-Democrats and prevent them from voting in its primaries. This effort by the Mississippi Democratic Party is instructive because it discloses that threats to free, fair, and open elections concern not only elective offices and those who eventually hold them, but also the political parties as they recruit and organize voters and nominate their candidates. Political parties merit protection as much as individual voters whose franchise is diluted and denied by the commission of fraud.
The Indiana voter ID case itself also demonstrates the problem of double voting by individuals who are illegally registered to vote in more than one state. Because different states do not generally run database matching comparisons between their voter registration lists, there is no national process by which to detect multiple registrations. One of the Indiana voters highlighted by the League of Women Voters who supposedly could not vote due to the voter ID law turned out to be registered to vote not just in Indiana, but also in Florida, where she owns a home and claimed a homestead exemption (which requires an individual to assert residency). She was not allowed to vote in Indiana because she tried to use a Florida driver's license as her ID-clear evidence that the law worked as intended to prevent a fraudulent vote by an individual who not only had claimed to be a resident of a state other than Indiana, but also had actually registered to vote there as well.
Unfortunately, attempts by neighboring states such as Kentucky and Tennessee to compare their voter registration lists for individuals registered in both states have been met with lawsuits contesting their right to do so. A federal court even issued an injunction barring the State of Washington from refusing to register individuals whose application information (such as their residence address) does not match information on that individual that is contained in other state databases, such as the Department of Licensing's (driver's licenses), thereby making it extremely difficult for a state to verify the accuracy and validity of information being provided by an individual in an attempt to register to vote.
One of the changes recommended by the New York grand jury to prevent problems caused by outside organizations filing fraudulent voter registration forms was "serializing and recording the serial numbers of all voter registration cards distributed in bulk and insisting on greater accountability by organizations engaged in voter registration." A number of states have recently attempted to implement such requirements after they received large numbers of fraudulent voter registration forms, or received legitimate forms too late to be effective for an upcoming election, from third parties such as the Association of Community Organizations for Reform Now (ACORN). These fraud-prevention efforts, however, were halted by lawsuits filed by organizations such as Project Vote and the League of Women Voters that claimed that such requirements would impede their voter registration drives.
Similarly, Ohio's attempt to improve third-party voter registration was also struck down. The law mandated training for individuals who assist applicants in voter registration; required them to provide their name, signature, address, and employer on the voter registration form of each individual they assist; and required them to return the forms directly to election officials rather than entrust them to a third party for delivery. These provisions were all enjoined as violations of the National Voter Registration Act and the First and Fourteenth Amendments to the Constitution. Even if the court rulings were legally correct (a questionable conclusion), that is all the more reason for a state to correct for potential fraud by requiring some form of reasonable voter ID at the polls.
There were no indictments issued by the New York grand jury as a result of its investigation "because the statute of limitations had run out in some cases and because several of those involved were given immunity in return for testimony." Remarkably, the fraud was apparently discovered only because of the actions of a former state senator, Vander L. Beatty, who was convicted of voter fraud and conspiracy. After Beatty lost the 1982 Democratic congressional primary election, some of his "supporters hid in the Brooklyn Board of Elections office until after business hours and then made some obvious forgeries of registration cards to create the appearance of irregularities" in order to give Beatty the ability to challenge (unsuccessfully) the winner of the primary election.
Even though it led to no indictments, the New York investigation still serves a valuable purpose. Most clearly, it demonstrates that voter impersonation is a real problem and one that is nearly impossible for election officials to detect given the weak tools usually at their disposal. Further, the investigation provides good reason to believe that this 14-year-long conspiracy to submit thousands (if not tens of thousands) of fraudulent votes in New York City could not have occurred if voters had been required to present photo identification when they voted.
New York's experience also demonstrates the fallacy of several arguments and assertions made by the petitioners' attorney, Paul Smith, in the Indiana case and by critics of voter ID in general. For example, Smith told Chief Justice Roberts that impersonation fraud is unlikely because it is not hard to detect: "When you're going into the polls and saying, I'm Joe Smith, you're dealing with a neighborhood person who knows a lot of people who are there, you have to match that person's signature."
The idea that, in our mobile society today, all of the poll workers in a precinct will be "neighborhood" workers who know everyone in their precinct (even a small precinct) does not match reality. The poll worker manual for the Board of Elections for the City of New York states that polling places have only 750 registered voters, yet the impersonation fraud that occurred in Brooklyn involving thousands of fraudulent votes went undetected for 14 years even in such relatively small precincts. Many jurisdictions in other states and counties have much larger precincts, some of them containing thousands of registered voters.
Contrary to Mr. Smith's claims, New York's signature requirement also did nothing to stop this successful voter fraud conspiracy from casting bogus votes in person at polling places. The participants in the Brooklyn case impersonated newly registered, deceased, and moved voters by voting in their place for years without detection.
Voter ID: A Sensible Solution
In recent elections, thousands of fraudulent voter registration forms have been detected by election officials all over the country. Given the minimal to nonexistent screening efforts engaged in by most election jurisdictions, there is no way to know how many others slipped through. In states without identification requirements, election officials have no way to prevent bogus votes from being cast by unscrupulous individuals based on fictitious voter registrations, by impersonators, or by non-citizens who are registered to vote-another growing problem. This is a security problem that requires a solution.
As the New York voter fraud investigation and other cases illustrate, impersonation fraud does occur and can be difficult or impossible to detect. States such as Indiana and Georgia have a legitimate and entirely reasonable interest in requiring voters to identify themselves when they vote in order to prevent impersonation fraud and voting through the use of fraudulent voter registration forms. The Indiana case also demonstrates that voter identification can detect unlawful multiple voter registrations by individuals in different states.
Finally, requiring a government-issued photo ID can prevent illegal aliens from voting (except in states that issue driver's licenses to noncitizens). A simple requirement that a voter demonstrate his authentic identity assures that free elections remain untainted by fraud that undermines their fairness and, in turn, disappoints the expectations of the voting public.
In 1984, the New York grand jury recommended that the governor and state legislature examine as a possible remedy "requiring identification from voters at the time of voting or registration." In 2005, the bipartisan Baker-Carter Commission on Federal Election Reform also recommended requiring photo ID for in-person voting because "[i]n close or disputed elections, and there are many, a small amount of fraud could make the margin of difference. And second, the perception of possible fraud contributes to low confidence in the system."
Voters in nearly 100 democracies are required to present photo identification to ensure the integrity of elections. Our southern neighbor, Mexico, requires both a photo ID and a thumbprint, and turnout has increased in its elections since this requirement was implemented. If Mexico can implement a successful photo ID program for its voters, there is no valid reason the United States cannot do the same.
As the grand jury in New York properly concluded at the end of its investigation of a vote-fraud conspiracy that had been successfully carried out without detection for 14 years, "The core of the democratic process is the right of the people to choose their representatives in fair elections. Fraud in the election process is intolerable."
Hans A. von Spakovsky served as a member of the Federal Election Commission for two years. Before that, he was Counsel to the Assistant Attorney General for Civil Rights at the U.S. Department of Justice, where he specialized in voting and election issues. He also served as a county election official in Georgia for five years as a member of the Fulton County Registration and Election Board.
 Crawford v. Marion County Election Bd., Nos. 07-21 and 07-25 (U.S. Supreme Court, cert. granted Sept. 25, 2007); 2005 Ind. Legis. Serv. P.L. 109; see Ind. Code §§ 3-11-8-25.1(c), 3-5-2-40.5. This voter ID law does not apply to those who are over 65, disabled, or confined by illness or injury, all of whom may cast absentee ballots. See Ind. Code §§ 3-11-10-24(a)(3)-(5). The law also does not apply to individuals "who vote in person at a precinct polling place that is located at a state licensed care facility where the voter resides." Id. at § 3-11-8-25.1(e).
 Indiana Democratic Party v. Rokita, 458 F. Supp. 2d 775 (S.D. Ind. 2006).
 Crawford v. Marion County Election Bd., 472 F.3d 949 (7th Cir. 2007).
 The Court and Voter ID's, N.Y. Times, Jan. 9, 2008.
 Linda Greenhouse, Justices Indicate They May Uphold Voter ID Rules, N.Y. Times, Jan. 10, 2008. According to Mr. Smith, "there's not a single recorded example of voter impersonation fraud…. It's not happening and, indeed, every single indication in this record is that the evidence of this kind of fraud occurring, to call it scant is to overstate it." Transcript at 19-20, Crawford v. Marion County Election Bd., Nos. 07-21 and 07-25 (U.S. Supreme Court, cert. granted Sept. 25, 2007), available at /static/reportimages/A892D1E4374C6FDAAFC4FFA31AECC916.pdf.
 Press Release, Brooklyn, New York, District Attorney's Office, D.A. Holtzman Announces Grand Jury Report Disclosing Systematic Voting Fraud in Brooklyn (Sept. 5, 1984); In the Matter of Confidential Investigation, No. R84-11 (N.Y. Supreme Court 1984) [hereinafter Grand Jury Report].
 Frank Lynn, Boss Tweed Is Gone, But Not His Vote, N.Y. Times, Sept. 9, 1984.
 District Attorney's Office, supra n. 6, at 1-2.
 Grand Jury Report, supra n. 6, at 2. Although the grand jury could not determine whether these illegal activities had altered the outcome of those elections, it did find that the outcome of at least one State Committee election in 1978 was changed by fraudulent voting. Id.
 Id. at 3.
 Id. at 11.
 Id.Without serial numbers, an election jurisdiction cannot determine which organization may be responsible for problematic or fraudulent registration forms that are received.
 Id. at 12.
 Lynn, supra n. 7.
 Grand Jury Report, supra n. 6, at 13.
 Id. at 14.
 Id. at 14-15.
 Id. at 15.
 Id. at 15.
 Transcript in Crawford, supra n. 5, at 18.
 Transcript of Briefing on Voter Fraud and Voter Intimidation, United States Commission on Civil Rights, Oct. 13, 2006, at 185.
 See Madeline Friedman, Anatomy of Voter Fraud: Will Officials Follow Up on Alleged $10 Vote Payoff? Hudson Reporter, July 1, 2007; Unclear Which Agency Will Investigate Voter Fraud: Prosecutor's Office Waiting for Referral, Hudson Reporter, July 8, 2007.
 U.S. v. Brown, 494 F. Supp. 2d 440 (S.D. Miss. 2007). The lawsuit was filed under Sections 2 and 11 of the Voting Rights Act and led to the first judgment in the U.S. finding racial discrimination in voting by black officials against white voters. The court said that it had "not had to look far to find ample direct and circumstantial evidence of an intent to discriminate against white voters which has manifested itself through practices designed to deny and/or dilute the voting rights of white voters in Noxubee." Id. at 449.
 Brown, 494 F. Supp. 2d at 486, n. 73. According to news accounts and sources in the Justice Department, in an apparent attempt to intimidate this witness, a Noxubee deputy sheriff and political ally of Brown arrested the witness for disorderly conduct and reckless driving only days after the government named him as a witness in a filing with the federal court. In an unprecedented move, the federal judge stayed the county prosecution. See John Mott Coffey, Noxubee Voting Rights Trial to Begin Tuesday, Commercial Dispatch, Jan. 13, 2007; Bill Nichols, Voting Rights Act Pointed in a New Direction, USA Today, April 3, 2006.
 SeeMississippi State Democratic Party v. Barbour, 491 F. Supp. 2d 641 (N.D. Miss. 2007).
 Cindy Bevington, Voter Cited by Opponents of Indiana's ID Law Registered in Two States, Evening Star, January 9, 2008.
 See Stumbo v. Kentucky State Board of Elections, No. 06-CI-610 (Franklin Cir., Ky. Oct. 2, 2006).
 See Washington Association of Churches v. Reed, 492 F. Supp. 2d 1264 (W.D. Wash. 2006); see also Florida State Conf. of NAACP v. Browning, No. 4:07CV-402 (N.D. Fla. Dec. 18, 2007), appeal filed Dec. 19, 2007.
 Grand Jury Report, supra n. 6, at 22.
 See Project Vote v. Blackwell, 455 F. Supp. 2d 694 (N.D. Ohio 2006); League of Women Voters of Florida v. Cobb, 447 F. Supp. 2d 1314 (S.D. Fla. 2006).
 Project Vote v. Blackwell, No. 1:06CV-1628 (N.D. Ohio Feb. 11, 2008).
 Lynn, supra n. 7.
 Transcript in Crawford, supra n. 5, at 19.
 N.Y. Bd. Of Elections, Poll Worker's Manual 2007 15, at /static/reportimages/C5E813FC4B16F01298FDB7B536C5262F.pdf, page 15.
 In just one Texas county, jury summonses led to the discovery that at least 330 illegal aliens were registered to vote and that 41 had voted repeatedly "in more than a dozen local, state and federal elections between 2001 and ." Guillermo X. Garcia, Vote Fraud Probed in Bexar, Express News, June 8, 2007.
 Grand Jury Report, supra n. 6, at 21-22.
 Commission on Federal Election Reform, Building Confidence in U.S. Elections 18, Sept. 2005.
 Id. at 5.
 John R. Lott, Jr., Evidence of Voter Fraud and the Impact that Regulations to Reduce Fraud Have on Voter Participation Rates, August 18, 2006, pp. 2-3, at /static/reportimages/F10A1DCA870E1CCEA6CCC90047A92D26.pdf.
 Grand Jury Report, supra n. 6, at 3.