Virtual Testimony Before Alaska Senate State Affairs Committee
Hans A. von Spakovsky,
Senior Legal Fellow and Manager, Election Law Reform Initiative
Edwin Meese III Center for Legal and Judicial Studies
The Heritage Foundation
February 11, 2021
I appreciate the invitation very much, Mr. Chairman and members of the Committee, to testify today. I am Hans von Spakovsky, a Senior Legal Fellow at The Heritage Foundation. I am also manager of their Election Law Reform Initiative. I have a lot of experience in the election area, including as a county election administrator in two different counties in two different States.
I served for four years at the U.S. Justice Department, enforcing federal voting rights laws that protect the right to vote. I also spent two years at the Federal Election Commission as a commissioner.
The testimony I am giving here today is in my personal capacity and not as a representative of the Heritage Foundation.
It is critically important that states improve the integrity of our elections. The key principles for a fair election are access and security. That requires ensuring that every person who casts a ballot is legally eligible to vote; that every legally cast vote is counted; and that the entire process is open to observation by the public, the political parties, and the candidates. Transparency is a fundamental essential for a fair and secure voting and election system, as well as to maintain public confidence in the validity of every election.
We want a system in which the public, the political parties, and the candidate of all the political parties, even when they lose, agree that it was a fair process without errors, mistakes, or fraud, in which the individual who received the most votes was declared the winner. The fairest way to achieve that goal is by requiring individuals to authenticate their citizenship, identity, and residence when they register and when they vote, whether it is in-person or through the absentee balloting process.
It is also essential that states maintain accurate, up-to-date voter registration rolls in which individuals who die, move away, or otherwise become ineligible do not remain on the voter rolls to cause confusion or to be taken advantage of.
In 2012, the Pew Foundation actually issued a report on the voter registration systems across the U.S. They estimated that there were 24 million voter registrations with significant errors. There were 1.8 million individuals who were dead who remained on the rolls and there were 2.7 million registered in more than one state.
In addition to errors and mistakes, election fraud does exist, and criminal penalties imposed after the fact are an insufficient deterrent. When Justice John Paul Stevens led the Supreme Court in upholding Indiana's voter ID law in 2008, he noted that examples of such fraud have been documented throughout this nation's history by respected historians and journalists, and not only is the risk of voter fraud real, but it could affect the outcome of a close election.
That, of course, is the key. The bi-partisan 2005 report of the Commission on Federal Election Reform, which was headed by former Democratic President Jimmy Carter and former Republican Secretary of State James Baker, made exactly the same point: that fraud can make the difference in a close election.
No one claims that election fraud occurs in every election. But it does happen often enough that we should be concerned about it, particularly in close elections, where a few votes could make the difference. Like the 2018 congressional race in North Carolina's Ninth District that was overturned by the State Board of Elections after an in-depth investigation showed enough absentee ballot fraud to have changed the outcome of the race – and a new election was ordered.
Or the city council race in Patterson, New Jersey, just last summer, in which the same thing happened. A new election was ordered by a judge (and four locals were charged with absentee ballot fraud) because the fraud made a difference in the outcome of the election. Or another quick example, the mayor of Gordon, Alabama, who in 2019 was removed from office after he was convicted of absentee ballot fraud in a race he won by only 16 votes.
I do not think I have to tell folks in Alaska about close elections, where every vote can make a difference, given that the Speaker of your House, Bryce Edgmon, was elected after a coin toss in a tied election that included both a recount and a court challenge over disputed ballots.
The Heritage Election Fraud Database, which we started just a couple of years ago, has 1,311 proven cases of fraud. We do not put a case in there unless someone has been convicted in a court of law of engaging in fraud or a court has ordered a new election because of fraud or a state agency like the State Board of Elections in North Carolina has found fraud. By the way, this is just a sampling of cases. It is not a comprehensive list.
It includes at least two illegal aliens from Mexico who were separately convicted in Alaska of illegally registering and voting in your elections, including one alien who impersonated his nephew, and another resident of your state who was convicted of forging voter signatures on ballot petitions.
This is just the tip of the iceberg. It does not include potential cases that were not investigated and not prosecuted. And I can tell you that we are following many cases right now that have not yet worked their way to their end, such as the former Democratic Congressman in Pennsylvania who, shortly before last year's election, was indicted by the U.S. Attorney’s Office there for bribing an election official to stuff the ballot box in Philadelphia elections for multiple candidates. The election official has already pleaded guilty to accepting those bribes and, in fact, stuffing the ballot box.
So, what is the answer to all of this? There are all kinds of improvements that states can make. I submitted to the committee a Fact Sheet that the Heritage Foundation published a week ago. It is called “The Facts About Election Integrity and the Need for States to Fix Their Election Systems.”
It is a list of best practices recommendations on the entire voting and election process, on everything from voter registration systems and how to maintain their accuracy, to our recommendations on how absentee ballots should be handled. This is a long list. I cannot cover all of this in my testimony. So I am just going to give you a couple of examples of the recommendations.
First of all, statewide voter registration lists should be interoperable. In other words, your statewide voter registration list should, on a regular basis, be able to do comparisons with, and check data in, your other state databases, such as your DMV database, your State Corrections database, and your State Welfare and Public Assistance database. The point of that is to find information that is relevant, not just to the residence address of voters, but also to their citizenship status, their death, and other factors that may affect their eligibility.
This is also an advantage to voters. If you change your address at a DMV, because you have moved, you have to get a new driver's license. Your system should be connected so that it will automatically change your residential address for voting, too.
Something that counties also need to do that a lot of counties are not doing is checking new voter registrations against county tax records. We all know the number one priority of county governments is collecting property taxes. That is how they fund their operations. But many election officials are not taking advantage of that.
The law in every state is you have to register to vote where you live and reside. When those registration applications come in, election officials in each county should be checking them against county records to ensure that the registration address is really a residential address and that it is not industrial property, a commercial property, a vacant lot, or a county park. That is an easy remedy, an easy fix. Yet that is not being done.
At least quarterly, the state ought to be running comparisons against the NCOA system. That is the “National Change Of Address” system run by the U.S. Postal Service. That is the system that we all use when we move. You can file notice with the Postal Service, giving them your new address. They will forward your mail to your new address. States are not checking the NCOA system frequently enough to find individuals who have moved, particularly folks who have moved out of state and therefore should no longer be on the state’s registration list.
State election officials should also be given access to, and you should appropriate money for them so that they are able to check with, commercial data houses, particularly credit agencies. Why? Because credit agencies often have much more up-to-date and current information on individuals than state databases. That is a way, again, of maintaining the accuracy of your registration system.
On citizenship, there are a whole series of steps that states ought to take and are not doing. I mentioned the fact that you have had several individuals already in past years who were not citizens who were convicted for registering or voting. But the problem of noncitizens is quite a bit bigger than that. One simple fix that the state ought to utilize is when individuals are called for jury duty.
Whether it is for a state court or a federal court, prospective jurors have to fill out a questionnaire as to whether or not they are U.S. citizens. That questionnaire is filled out under oath. In most states, election officials provide their voter registration list to the state courts and also to the federal courts to use for juries. An easy change and a fix to state law is to require jury commissioners or court clerks to send that information back to election officials. If someone is excused from jury duty because he or she is not a U.S. citizen, election officials need to know about it. If someone is excused from jury duty because he has moved out of the state, that information needs to go back to election officials, and in many states that is not being done.
Same thing with the federal courts. Most federal courts rely on state voter registration lists for their jury lists. The state should condition providing that voter registration list to federal courts that want it on the federal courts agreeing to pass back to state election officials information on individuals who are excused from jury duty.
Again, information on people called for jury duty who are excused because they no longer live in the state, are not U.S. citizens, or are felons – that information should be sent to election officials.
Requiring a photo identification to vote is a basic requirement for election security, and it is a commonsense requirement. Government-issued IDs should be free for those who cannot afford one.
Polls show that the overwhelming majority of the American people support an ID requirement, no matter their political party and no matter their ethnicity or race. Such an ID requirement should be applied to both in-person voting and absentee ballots. I will tell you that Alaska's voter ID law is extremely weak since it allows, for example, utility bills and bank statements, which I can easily create on my laptop that I am now speaking from, as an acceptable form of ID.
What is interesting about this is that I checked the state requirements for the Alaska Permanent Dividend Fund. If you want to apply for it, the application process makes it very clear that a utility bill or bank statement is not acceptable for establishing residence in the state, and yet it is considered acceptable for voting.
On absentee ballots, there are a whole series of things that should be done. As I said, I think you should have a voter ID requirement for absentee ballots. But you should also require a tracking system. UPS and Federal Express put barcodes on their packages so that you can instantly tell where it is and when it will arrive. A barcode is the very same thing that election officials need to put both on the envelope in which they send absentee ballots to voters, and on the envelope that is given to voters to use to send the absentee ballot back. That is very, very important so that voters can keep track of the absentee ballots they have requested.
This is important for this reason. The U.S. Election Assistance Commission files a report with Congress every two years on each federal election. Those reports are based on survey data they get from each state. I checked that data and for Alaska, in the last four federal elections, not including the last year's election, but 2012, 2014, 2016 and 2018. The reports show there were almost 3,000 absentee ballots listed as being undeliverable. That means that election officials sent them to voters who had requested them, and the Postal Service sent them back saying they were not deliverable.
Over 18,000 absentee ballots are listed by Alaska as status “unknown.” That means that a voter requested an absentee ballot, election officials sent it to the voters, and then never heard another word about it. So, the state does not know whether the voters actually ever got the absentee ballots, whether the voters simply decided not to vote them, or whether the voters did fill out the ballots, put them in the mail, and they were never delivered. A tracking system would help the state figure out what happened to those ballots.
And frankly, you need a system in place, for example, for the ballots that the Postal Service said were undeliverable to registered voters. Those need to be flagged. Election officials should be under an obligation to investigate those and see why they were undeliverable and why there was a problem.
I will discuss just two other things, because I am running out of time.
All states should ban vote trafficking. Another word for that is vote harvesting. Let me explain why. No one disputes that we need absentee ballots for individuals who are permanently disabled, are too sick to make it to polling places on Election Day, or are otherwise out of town on Election Day, and cannot vote.
Individuals should be able to mail those ballots back, personally deliver them themselves, or a member of their family or a designated caregiver should be able to deliver those ballots. But if a state allows any third-party stranger to pick up and deliver those ballots, what you are doing is putting a valuable commodity, a ballot, into the hands potentially of candidates, campaign staffers, party activists, and political consultants – people who have a stake in the outcome of the election.
We have seen the problems from case studies of absentee ballot cases, and I have done a number of case studies of investigations and prosecutions of absentee ballot fraud cases. Absentee ballots, because they are the only kind of ballot that are voted outside the supervision of election officials and outside the observation of poll observers or poll watchers, are much more vulnerable to being altered, changed, or not delivered. They also subject voters potentially to coercion and pressure in their homes. Those are all factors that have occurred in absentee ballot fraud cases.
There is plenty of opportunity for voters and their families to get absentee ballots back to election officials. It is just not a good idea to allow third-party strangers to do that.
Finally, I think one thing that we saw in the last election that all states should ban is election officials, both at state and local levels, should not be allowed to receive private funding from private organizations. This creates a potential conflict of interest that election officials may then feel obligated to act at the directives of those organizations. Plus it may create unequal opportunities to vote within a state.
If certain jurisdictions are getting private funding over, above, and beyond the state funding and local funding that they are getting, that may create more opportunities to vote in those areas than other parts of the state. This provides a real problem under both federal voting rights laws and under constitutional Equal Protection principles.
These are just a few of the recommendations we have made. As I said, we supply many others in this “best practices” Fact Sheet that we have submitted to the Committee. I would be happy to answer questions now or after all the witnesses have given their opening statements. Thank you very much.
Questions and Answers
Senator Mike Shower: Thank you, sir. That was a very measured, very fact-filled presentation, and it was exactly what we were hoping for, which is folks from the lower 48 that have been researching this for some time and that could help us understand the broader issues that we face, including what happens in Alaska…I have one question for you…I have also been told and in the last few weeks I have been rather lambasted in the press and others for wanting to suppress the vote, et cetera, with any kind of bill like this, to try to increase our election security and integrity, but you talked about voter ID….
[C]ould you just illuminate a little bit more of that because that is such a contentious political issue of the accusations flying of people that might request a voter ID and then for absentee, how again, would you suggest or ideas that you may have for having an ID with absentee? Because it is one of the things we are struggling with, a multifactor-type authentication for people, especially for mail-in absentee balloting, because that is our chain of custody. We do not have one.
Hans von Spakovsky: The idea that voter ID suppresses votes is a false narrative myth created by those who oppose it. Here is how we know that. First of all, there have been voter ID laws in place now for more than a decade. Indiana's law was upheld by the U.S. Supreme Court in time for the 2008 election. Georgia's voter ID law requiring a government-issued photo ID was first in effect in the 2008 election.
The vast majority of lawsuits filed against states that put in those kind of ID requirements have failed. A few have been successful, but almost all of them have failed for the simple reason that, for example, the Georgia and Indiana cases, which I am most familiar with, the plaintiffs were unable to produce a single witness who would be unable to get an ID.
First of all, Americans overwhelmingly, in the upper 90th percentiles in most states, upwards of 96, 97, 98 percent, already have an ID. As you know, we do not have a national ID card in this country. The national ID card everyone uses are driver's licenses and in every single state that has put in an ID law, they have put in a provision providing a free ID for anyone that does not have one.
Second, we know it does not suppress votes because, as I said, these laws have been in place for more than a decade. We have more than 10 years’ worth of turnout data from states with ID laws that can be compared to states without ID laws. That data shows – and I published a number of papers on what happened to turnout in states such as Tennessee, Georgia, Texas, and elsewhere when their ID laws were in place – that not only did turnout not go down, it went up.
In Georgia, for example, the turnout of black voters and Hispanic voters went up at a greater rate than the turnout of white voters. I would refer you to a study put out in 2019 by the National Bureau of Economic Research. They examined voter turnout across the 50 states from 2008 through 2016. Here is their conclusion: voter ID laws had “no negative effect on registration or turnout overall, or for any specific group defined by race, gender, age, or party affiliation.”
How do you apply this to absentee balloting? I would refer you to the laws, for example, in Alabama and Kansas. Alabama and Kansas both have voter ID laws that apply to absentee balloting. In the Kansas law, the way you can satisfy that requirement, for example, is you can send in a photocopy of any of the acceptable IDs, of which there is a long list. It is everything from passports to military IDs, to driver's licenses, to the non-driver’s license photo IDs that every DMV issues. And remember they provide it free to anyone who needs one.
You can also simply write in the serial number of that unique photo ID that you have on the absentee ballot request form or the absentee ballot form that you fill out when you send the ballot back. That satisfies the requirement.
Those laws have been in place now for years, and they have had no problems. This idea that the vote will be suppressed because of an ID requirement is just not true. The reason is – and why Americans overwhelmingly support this – ordinary Americans, from blue collar to the middle class, we have to show an ID every day for many different reasons.
Everything from buying a beer to cashing a check to exercising other constitutional rights, such as traveling – if you want to get on an airplane, you need a photo ID. You want to exercise your Second Amendment right to buy a gun, you have to have a photo ID. In almost every city and town, if you want to get a marriage license – and it was the Supreme Court that has said the ability to get married is a civil constitutional right – you have to have a government-issued photo ID. So that is just not a problem.
All the claims that ID somehow keeps people from voting is false. All you have to do is look at the experience of the states that put in ID requirements such as Georgia, Indiana, Tennessee, and other states. ID laws have not suppressed votes. In fact, there turnout has gone up.
Senator Lora Reinbold: First of all, this is fascinating. I have taken a whole page of notes...[Y]ou gave us a definite blueprint for helping improve voter integrity, because I would say that, in Alaska, there is a lot of dissatisfaction going on right now…But my question is this bill is coming to Judiciary next. And I cannot wait for this bill to come to our committee. I am trying to get [Anchorage Superior Court] Judge [Dani] Crosby before our Judiciary Committee. We are requesting her presence there.
Right now, it feels like the executive branch lives in the legislative branch; the executive branch, which is probably my biggest pet peeve right now. And so I have no problem bringing the judiciary before us, if we are going to all cross lanes, then let us bring the judiciary branch before the legislature as well, because where is the checks and balances on the judicial branch? That is what my question to you is because Judge Crosby struck down a really important provision that we put into law, and I feel like it potentially swung the election. And so with that, I am not sure if you want to weigh in on that, but we will definitely be addressing that in Judiciary.
Senator Mike Shower: Just to be clear on that, and you may be aware of this, but the Judge Crosby she is referring to struck down our witness signature requirement [on absentee ballots]
Hans von Spakovsky: Yes, I am very familiar with that case. What I would say about it is that a similar lawsuit was filed, as you may know, in South Carolina, called Andino v. Middleton, trying to do exactly the same thing, to use the COVID pandemic as an excuse not to allow the state to enforce its witness signature requirement. You may know that case went all the way to the U.S. Supreme Court, which overturned a stay that had been unwisely and unlawfully granted by a lower court. South Carolina was allowed to enforce its witness signature requirement for absentee ballots.
There are two things to note about that. This was in a statement made, I think, by Justice [Brett] Kavanaugh, when they overturned the lower court injunction and allowed the witness signature requirement to be applied. This is very important. South Carolina had, as a witness in that case, their director of infectious diseases at the Medical University of South Carolina. She said that the witness signature requirement did not “pose a significant risk” because "it takes little time and can be done with face masks, social distancing, and proper hygiene."
It takes about a minute to witness someone signing an affidavit for an absentee ballot affidavit, which you can safely do, as she said, wearing a mask, and six feet away. I would be willing to bet that the plaintiffs in those cases, if you were to ask them, "Well, how often have you been going to the grocery store and the pharmacy", and all these other places where there are highly more likely to potentially catch COVID-19, they probably would say they are doing that all the time. And they are spending a lot more time in those kinds of establishment than a minute.
Second, on the main issue that you talked about, there was not just the South Carolina case, but in numerous cases, the Supreme Court and other appellate courts overturned stays and injunctions issued by lower court judges in the federal courts, saying that judges were interfering with the decisions made by state legislatures. And holding that state officials were in a much better position to judge what was necessary to deal with COVID-19 particularly in the election area than judges. These judges were also making changes in the rules close to an election, which the Supreme Court says they are not supposed to do because that causes not only confusion and chaos for voters, but confusion and chaos for election officials.
What should have happened in your case is that the judge in Alaska should have followed what the Supreme Court said in the South Carolina case; she should have allowed the witness signature requirement to be enforced. Alabama had a similar lawsuit and the very same thing happened there. Again, the higher courts said the state could continue to apply its witness signature requirement. There were no problems because of that during the election. There was no spike in COVID-19 infections because they were able to enforce their signature requirement.
Senator Mike Shower: Thank you, sir. Your depth of knowledge on this is very impressive for the case studies you are bringing other committee members. Do you have any questions at this time? I have one quick one here, just for timing sake. Do you know, because you had mentioned this before, if a mandatory voter ID according to the case law would violate any portion of the 1965 Voting Rights Act?
Hans von Spakovsky: As I said, in the majority of states that passed a voter ID law with the exception of the first one, Indiana, claims have been made both that their laws were unconstitutional and that they violated the Voting Rights Act. Only in one or two of the cases was there found to be a violation of the Voting Rights Act. In almost every other case, it was not found to be a violation of the Voting Rights Act for the simple reason that, first of all, the voter ID requirement applies equally to all voters.
Second, whenever evidence had to be produced by the plaintiffs in those cases, they were not able to show that there is really any significant or substantial difference in voters having an ID whether you are black or Hispanic or white. Most importantly, regarding your ability to get an ID, particularly in the Wisconsin case over their ID law, the U.S. Court of Appeals for the Seventh Circuit said that it would be one thing if you could show that state officials were discriminating against individuals and their ability to obtain an ID.
But there was no such evidence, for example, in the Wisconsin case, and there has been no evidence produced in any other state that state officials are somehow refusing to give IDs to some people instead of others. In Alabama, in order to make sure that the very small number of people who do not have an ID will be able to have one, they even equipped a mobile van that would go to the homes of individuals who are unable, on their own, to get to the many places where you could get an ID. Claims of discrimination were made in the Alabama case, but the courts threw them out and said the ID law was not discriminatory.
This transcript has been edited for brevity and conciseness and to add citations to references in the testimony.
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