I'll Show You A Fraud

The topic of the day is voter fraud, as this article detailing Bush administration "edits" to a report on voter fraud has been racing around the blogosphere. Basically, a bipartisan panel concluded that there was a solid consensus that voter fraud in the 2006 elections was minimal--specifically, "there is widespread but not unanimous agreement that there is little polling place fraud." By some magical coincidence, this rather definitive conclusion was morphed by Bush's political appointees into "there is a great deal of debate on the pervasiveness of fraud."

Obviously, I have a lot to say as to how this impacts the voter fraud/voter disenfranchisement debate. Since placing more stringent laws to combat voter fraud will inevitably deter some legitimate votes (and vice versa, more liberal voting laws make it easier to commit fraud), a fair examination of the issue needs to look at whether the we should care more about fraud or disenfranchisement, because from a policy perspective we can only pursue one or the other. I have blogged at length on this point before, and the empirical data is beyond question that voter disenfranchisement is a more serious problem than voter fraud. Voting rights expert Spencer Overton has estimated that there is 1000:1 ratio of legitimate to fraudulent votes deterred caused by imposing voter ID requirements. Indiana managed to justify its voter ID law on fraud-prevention grounds, despite never having a prosecuted instance of voter fraud in the history of the state. In the America we live in today, the quantity of evidence that voter disenfranchisement is a more serious problem for electoral integrity than voter fraud rivals that for gravity. The mendacity of the boys who cry fraud is akin to Young Earth Creationists, except that I'm more inclined to chalk up the former to pure hackery, with the latter ascribed to mere ignorance.

But before we get there, I think it's important to link this revelation into the scandal d'jour for the Bush administration--the attorney purge. There is a nexus point between the two stories, and it stems from a concerted conservative effort to lock out of democratic participation its political enemies--often racial minorities. Quoteth Josh Marshall:

You have to put all these pieces together to see the whole picture. The Republican party is heavily invested in hyping and inventing claims of voter fraud which they then use to stymie legitimate voter registration drives and institute 'ballot integrity' efforts which have the actual goal of limiting voting by racial minorities and under-income voters. The truth can hurt but that's the unvarnished truth. And the backdrop to the US Attorney Purge was a concerted effort to enlist US Attorneys to put the power of the state criminal prosecution apparatus behind this partisan gambit.

This is a crucial point. The firings of the New Mexico and Oregon attorneys, especially, are being linked to these public servant's refusal to pursue politically motivated voter fraud charges against Democrats. These activities have a long and sordid history in America. Scott Lemuiex summarizes:

It should be noted as well that the use of ostensibly neutral franchise-restricting measures to suppress the vote along racial and class lines has an extensive and incredibly ugly history in this country. A lot of people aren't aware of this, but even in its most conservative periods, the Supreme Court wouldn't allow direct violations (or transparent evasions, like the grandfather clause) of the 15th Amendment. But the use of facially neutral techniques like poll taxes and literacy tests allowed states to disenfranchise African-Americans anyway. "Vote ID" laws, felon disenfranchisement that results in the purging of some non-felons, and other techniques repeat the pattern at a lower (but, in a tightly divided electorate, potentially decisive) level.

Consider this passage from Michael J. Klarman's magisterial work on the Jim Crow era, From Jim Crow to Civil Rights:

Southern whites carefully avoided open contravention of the [15th] amendment. They assumed that the implementation of explicit racial conditions on suffrage would prompt federal intervention—either court action or reduction of southern congressional representation under section 2 of the Fourteenth amendment. Thus, in 1910, southern politicians were alarmed by Maryland’s disfranchisement proposal, which denied that the Fifteenth Amendment was binding and expressly qualified the suffrage based on race. Critics thought the nation would ‘not submit without a protest to the barefaced nullification’ of the Fifteenth Amendment and feared that Maryland’s scheme would endanger more subtle disfranchisement measures. Even southern state courts might have felt compelled to invalidate laws expressly barring black political participation, much as they reversed convictions of blacks where jury commissioners had deliberately and openly excluded blacks jurors. In 1904, a Georgia court invalidated a law forbidding blacks from voting in municipal elections.

Yet most white southerners thought the Fifteenth Amendment was illegitimate. A leading Louisiana disfranchiser stated a prevalent view when he called the amendment ‘the greatest crime of the Nineteenth Century’; crazed Republicans bent on partisan gain had imposed ignorant ‘negro domination’ on the South. Deterred from explicitly nullifying the amendment, white southerners generally felt ‘morally justified in evading and defeating [its] admitted purpose.’ Disfranchisers were not subtle about their objectives. At the Virginia convention, Carter Glass acknowledged that his mission was ‘to discriminate to the very extremity of permissible action under the limitations of the Federal Constitution, with a view to the elimination of every negro voter who can be gotten rid of, legally.’(33)

We tell the history of racist oppression in America as one of Southerners openly and proudly passing laws that said, in substance, "No Blacks." But often times, that wasn't what happened, and they specifically drew up the laws to pass formalist muster.

Here's a primary source from the era saying much the same thing:

Largely through the foresight and sagacity of the late Hon. J.Z. George, the Mississippi Constitution of 1890 securely guards against the registration of Negroes in large numbers. Its provisions relating to the prerequisites to registration as an elector, impose the following requirements: Two years of residence in the state; one year of residence in the election district; payment of all taxes for the preceding two years (the applicant must produce evidence to the satisfaction of the election officials that all taxes have been paid); freedom from disqualification by a prior conviction of certain crimes; payment of a poll tax; and a literacy requirement.
[...]
Large numbers of Negroes are automatically disqualified from the exercise of the franchise by moving from one county to another to make crops at the first of each year.

Most the [sic] Negroes in Mississippi are poverty-stricken. That fact, coupled with the natural improvidence of the race, will lead to a default of many in the payment of taxes….
[…]
In specifying those crimes which would disqualify a citizen from exercise of the privilege of voting, upon conviction, the compilers of the Mississippi Constitution listed those offenses which the irresponsible and impulsive class of uneducated Negroes are most prone to commit….
[…]
The illiteracy of the Negro population of the South is well known. Few have more than the rudiments of education. Wholesale disqualification would follow the imposition of a literacy test, in the event of any general tendency of Negroes to apply for registration. The Mississippi Constitution requires that an elector shall

‘be able to read any section of the constitution of this state; or he shall be able to understand the same when read to him, or give a reasonable interpretation of the same.’

The constitution leaves to the choice of the election officials the selection of the section to be interpreted. The most illiterate white man could readily give a clear interpretation of the provision that ‘The governor shall be at least thirty years of age,’ but it would tax the wits of any Negro applicant not educated in law (and lawyers may not serve as jurors) to adequately explain just what is meant [*203] by the provision that ‘The writ of habeas corpus shall not be suspended,’ or that ‘Ex post facto laws shall not be passed.’[J.F. Barbour, Note and Comment Mississippi Law Journal 8 (1935): 196-204, pp. 201-203]

Barbour, mind you, wrote this in an article agreeing that laws which explicitly forbade Blacks from voting or serving on juries were unconstitutional. This was the section where he explained why acceding to that formalistic principle would not threaten White Supremacy.

I stress these points because we simply cannot discuss this issue blind to the history behind these sorts of policies, and the manner in which formally neutral voting laws were a key pillar in America's racist hierarchy. The willful blindness exhibited on this issue is simply unbecoming of genuine deliberative dialogue, and ought to be called out more often.

Here's a round-up of other views

Steve Benen

Hilzoy's post explains why, if you want to steal an election, voter fraud is a really dumb way to do it.

FireDogLake

PoliBlog offers a strong and sober analysis of the story.

Mark Kleiman discusses the Bush Administration's efforts to suppress reports contrary to their policy on voter fraud and related issues.

Politburo Diktat certainly sounds like "a conservative whose been mugged by reality" in this post.

Brilliant at Breakfast: "It can no longer be denied: Republicans will rig the system to ensure Republican power by any means necessary. The question now is this: What are we going to do about it?" Maybe a bit hyperbolic, but its tough to argue with the trend line.

Kevin Drum finds the "great deal of debate" line echoing eerily of global warming "skeptics." No kidding.

And finally, Matthew Yglesias' short but sweet post has been a reference point for many of the top bloggers--for good reason.