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.
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
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.
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
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
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
The Tools of Vote
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
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.
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
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.
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
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 1970, the
witness voted at least 10 times, at 10 different polling places,
using bogus registration cards. He was part of a crew of five
persons, each of whom was paid $40 for the day's
In the 1972
Democratic primary election, he received a promotion to crew chief,
running a crew of five members.
By 1974, his
crew had grown to eight members, each of whom voted in excess of 20
times, and there were approximately 20 other crews operating
during that election.
In 1976, the
grand jury witness led a crew of five people who cast at least 100
same witness had been present at a meeting prior to election day
that was "attended by twenty crew chiefs."
If the other
crews averaged as many fraudulent votes, then there would have been
at least 2,000 phony votes cast in that election without detection
by precinct poll workers or election officials.
By 1982, the
witness "was to have provided twenty-five workers to vote in a
Congressional primary election again using bogus voter
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:
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.
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
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.
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
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.
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
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
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.
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
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
Voter ID: A
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
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 §
 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
 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.Without serial
numbers, an election jurisdiction cannot determine which
organization may be responsible for problematic or fraudulent
registration forms that are received.
 Grand Jury Report,
supra n. 6, at 13.
 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
 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.
State Democratic Party v. Barbour, 491 F. Supp. 2d 641 (N.D. Miss.
 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,
 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.
 Project Vote v. Blackwell,
No. 1:06CV-1628 (N.D. Ohio Feb. 11, 2008).
 Transcript in
Crawford, supra n. 5, at 19.
 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.
 Grand Jury Report,
supra n. 6, at 3.