New Myths on Voter ID

COMMENTARY Election Integrity

New Myths on Voter ID

Oct 13, 2011 9 min read
Hans A. von Spakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration.

Last weekend, both the New York Times and the Washington Post ran commentaries claiming that voter fraud is a myth. “There is almost no voting fraud in America,” pronounced the Post’s October 9 editorial. Apparently the liberal commentariat spurns reading readily available case studies on election fraud, and well-researched books detailing fraud, including John Fund’s Stealing Elections and Larry Sabato’s Dirty Little Secrets.

The fraud denialists also must have missed the recent news coverage of the double voters in North Carolina and the fraudster in Tunica County, Miss. — a member of the NAACP’s local executive committee — who was sentenced in April to five years in prison for voting in the names of ten voters, including four who were deceased. And the story of the former deputy chief of staff for Washington mayor Vincent Gray, who was forced to resign after news broke that she had voted illegally in the District of Columbia even though she was a Maryland resident. Perhaps they would like a copy of an order from a federal immigration court in Florida on a Cuban immigrant who came to the U.S. in April 2004 and promptly registered and voted in the November election.

But the papers go beyond denying even the existence of fraud. They also erroneously claim that new voter-ID laws and other reforms designed to protect the integrity of the democratic process are actually intended to suppress the votes of Democrats and minorities.

None of this is true, of course, and the “evidence” presented to support those allegations is nothing but smoke and mirrors. All claims about vote suppression and supposedly huge numbers of voters who don’t have ID are based on a dubious study released a week ago by the Brennan Center, a partisan and unobjective advocacy organization.

The “report” by the Brennan Center, “Voting Law Changes in 2012,” claims that 5 million voters will be disenfranchised due to the recent “wave” of election laws that have been implemented. That total is supposedly made up of:

1.     3.2 million voters who will be unable to vote because of voter-ID laws.

2.     240,000 voters who will be unable to vote because of laws requiring proof of citizenship to register to vote.

3.     202,000 voters registered in 2008 through voter-registration drives that have now been made extremely difficult or impossible under new laws.

4.     630,000 voters registered in 2008 through Election Day voter registration where it has now been repealed.

5.     One to two million voters who voted in 2008 on days eliminated under new laws rolling back the time allowed for early voting prior to election day.

6.     At least 100,000 disenfranchised felons who might have regained voting rights by 2012.

When deconstructing the total number, almost all of the supposed millions of voters affected are based on the 1st and 5th bullet points (3.2 million and 1 to 2 million), which are fallacious; and the merits of the rest of the “key” points don’t hold up under close examination.

An analytic reader of the Brennan Center report can’t help but wonder “Where’s the beef?” Most of the 2011 report is based on an extrapolation of an earlier, even more questionable report released in 2006. I pointed out the numerous problems with that 2006 study in a recent National Review article:

About the only thing the Left has had to rely on for its hollow claims about photo ID is a flawed 2006 study — titled “Citizens without Proof” — by the Brennan Center at NYU’s law school supposedly showing that millions of Americans who are eligible to vote lack photo ID. The Brennan Center has been vigorous in opposing almost every sensible voter reform, from voter ID to requiring proof of citizenship when registering to vote. This 2006 study is dubious in its methodology and especially suspect in its sweeping conclusions. It is based on a survey of only 987 “voting-age American citizens,” although it contains no infor­mation on how it was determined whether a respondent was actually an American citizen entitled to vote, and might easily have included illegal and legal aliens, felons, and others who are ineligible. The survey then uses the responses of these 987 individuals to estimate, based on the 2000 Census, the number of Americans without valid documentation. Although the report says it was weighted to account for underrepresentation of race, it does not provide the methodology used.

By neglecting to ask whether respondents were actual or likely voters, registered voters, or even eligible voters, the study ignored the most relevant data: the number of eligible citizens who would have actually voted but could not because of voter-ID laws. All pollsters know that the only really accurate polls are of likely voters, not of the voting-age population. Surveys of registered voters have shown the exact opposite of the Brennan Center study: American University found that less than one-half of 1 percent of registered voters in Maryland, Indiana, and Mississippi lacked a government-issued ID. A 2006 survey of more than 36,000 voters found that only 23 people in the entire sample would be unable to vote because of an ID requirement.

Also, the Brennan Center survey didn’t ask whether people had IDs; it asked whether IDs were “readily available.” And the question about citizenship documentation asked whether respondents had access “in a place where you can quickly find it if you had to show it tomorrow,” even though elections are not scheduled on such a short-term basis. This was obviously intended to skew the results. The survey also failed to ask whether respondents had student IDs, which are acceptable under many state laws, or tribal IDs, which are acceptable in some states, including Georgia and Arizona. On one question, 14 percent of respondents were so confused that they said they had both a U.S. birth certificate and naturalization papers.

So there really is nothing behind the claim that 3.2 million voters will supposedly be unable to vote because of new voter-ID laws. This is especially true because these same types of claims were made in the federal lawsuits filed against voter-ID laws in Indiana and Georgia. Those lawsuits were dismissed because the plaintiffs were unable to produce a single individual, much less “millions” of voters, who would be unable to vote because of the requirement to show a photo ID. (Note: All of the states provide a free photo ID to anyone who can’t afford one). As a Heritage study found, sharply higher turnout in the 2008 and 2010 elections in Georgia and Indiana proved that voter ID does not prevent Democrats or minorities from voting. Five years later, the disastrous results that the Brennan Center has been predicting since 2006 have never materialized.

Next, the Brennan Center claims that 240,000 voters will be unable to vote because of new laws in Georgia, Kansas, and Arizona that require proof of citizenship to register to vote. Again, there is no evidence to support their numbers, which are based on their flawed 2006 study. In upholding Arizona’s proof of citizenship requirement in 2008, federal district court judge Roslyn Silver (a Clinton appointee) noted that the plaintiffs had “only produced one person . . . who is unable to register to vote due to” the new requirement and had produced no evidence that “the persons rejected are in fact eligible to register to vote.”

Georgia recently sued the Holder Justice Department because of its delay and dilatory tactics in reviewing Georgia’s proof-of-citizenship law under Section 5 of the Voting Rights Act. After the state filed suit, the Department immediately capitulated and precleared the law without objection because it was unable to produce a single scintilla of evidence that requiring proof of citizenship to vote was discriminatory or that any eligible U.S. citizens would be unable to vote.

The Brennan Center claims that 202,000 potential voters will be affected by new rules on voter-registration drives conducted by third-party organizations like ACORN. They base this number on voters who registered in 2008 through such drives. But again, there is no proof that voters will not simply register via one of the many other ways provided under the National Voter Registration Act or Motor Voter — such as registering at state DMVs, which is the way the vast majority of Americans register.

More important, the new rules imposed by states like Florida are, contrary to the Brennan Center’s claims, intended to guarantee the enfranchisement of voters. For example, Florida will now require organizations to turn in voter-registration forms within 48 hours of their completion by voters. This is intended to stop the disenfranchisement that has occurred in past elections due to organizations like ACORN holding on to these forms past the registration deadlines. Election officials will tell you that they have received thousands of forms, some of them months old, either on the eve of the registration deadline (making it very difficult to process them before the election) or past the deadline, which disenfranchises voters who thought they had gotten registered for an upcoming election.

Florida also now requires organizations to put an identification code for their organization on each registration form so election officials will know which organization screwed up a registration when it comes in incomplete. That was also caused in large part by the thousands of incomplete and fraudulent registration forms submitted by ACORN. I fail to understand how that requirement will keep people from registering to vote.

Next, the Brennan Center claims that 630,000 potential voters will be affected by the elimination of Election Day voter registration in states like Maine because that is how some voters registered in 2008. Again, there is no evidence that such individuals will not register prior to Election Day like all other voters. The Maine Heritage Policy Center just released a study concluding that Election Day registration “had no recognizable impact on voter turnout in Maine since its implementation in 1973. In fact, the three lowest turnout years since 1960 occurred after EDR was implemented.” California voters defeated a 2002 referendum to implement Election Day registration 59 percent to 41 percent, and even such liberal newspapers as the Los Angeles Times and the San Francisco Chronicle warned against its implementation because of the potential for voter fraud.

The Brennan Center’s figure of 1 to 2 million voters who will be affected because of new laws rolling back the time allowed for early voting also has no data to back it up. In fact, turnout data from prior elections show quite the opposite. Curtis Gans of American University has done a number of studies comparing turnout in early-voting states with turnout in other states. He found that turnout in national elections increases at a slower rate (or decreases at a steeper rate) in states with early voting, compared with states without early voting.

Gans speculates that early voting just provides greater convenience to individuals who would vote anyway on Election Day. Since campaigns spend the bulk of their money on get-out-the-vote efforts just before Election Day, that concentrated effort may not be as effective when it is spread out over a long period of time in states with early voting. So the claim that Florida’s changing its early-voting period from 13 days to seven days, or Georgia from 45 days to 21 days, will decrease turnout is pure speculation by the Brennan Center. The evidence points to the contrary. Brennan assumes that a person who previously voted ten days before early voting ended will decline to vote between one and seven days before it ends. Transforming that faulty assumption into “disenfranchisement” is absurd. Even if the assumption were correct, the voter would have disenfranchised himself by choosing not to vote any time during a week-long period.

Finally, the Brennan Center claims that 100,000 felons will be unable to vote because of changes in state laws making it more difficult for felons to regain voting rights. States have a constitutional right under the Fourteenth Amendment to take away the right to vote from individuals for “participation in rebellion, or other crime.” There is no constitutional barrier to Florida’s requiring a five-year waiting period for felons before they can apply for restoration to prove they have learned their lesson, paid their debt to society, and successfully reintegrated themselves into civil society. The Brennan Center views this — and the fact that the five-year period resets if a felon is rearrested — as a vicious violation of a felon’s rights. The Center is entitled to its opinion, but opinions are not facts.

Some of the bias in the report is very telling, such as a passage on page 18 that says that the claims of Colorado secretary of state Scott Gessler and Kansas secretary of state Kris Kobach about finding noncitizens registered to vote have been “debunked.” What do they cite for this debunking? Another questionable Brennan Center study that simply said that “without the underlying reports and methodologies . . . any conclusions cannot be fully supported or dismissed.” It also relies on a statement from Rep. Charles Gonzalez (D., Texas), who attacked Gessler at a House Administration Committee hearing for being honest enough to state the limitations on his data, but didn’t offer any evidence to refute Gessler’s report. So a Democratic congressman’s unsupported attacks are taken as both true and sufficient to counter the carefully described research of a Republican secretary of state. By the way, a credited contributor to the 2011 report is none other than Myrna Perez, President Obama’s nominee to fill a Democratic seat as a commissioner on the U.S. Election Assistance Commission.

To judge from the number of reports citing its conclusions, the Brennan Center report is certainly a successful propaganda effort. However, neither the editorials of the Washington Post and the New York Times nor the Brennan Center report are empirically driven. Rather, they are myth-driven diatribes against common-sense election reform that the vast majority of the American people agree with, no matter what their race or political background. They are certainly not the devastating constraints on voters that the Brennan Center’s report puffs them up to be.

Hans von Spakovsky is a senior legal fellow at The Heritage Foundation.

First appeared in National Review Online