Lithwick: The Vote Fraud Bogeyman

Just as a sizable fraction of American children firmly believe in a bogeyman in the closet, many American adults are gripped by the paranoid fear that the opposing political party regularly steals votes—Democrats allegedly do this through vote fraud (i.e., casting ballots for dead people) and Republicans apparently do so through vote suppression (i.e., preventing voting through intimidation or misinformation). Last weekend's screening of HBO's "Recount" will remind anyone who still needs reminding that modern elections will make a prisonyard fight look both fair and cordial. Indeed, Tom Wilkinson, playing Bush adviser James Baker, growls at one point that "this is a street fight for the presidency of the United States." Perhaps not the happiest of images going into 2008.

But while there really is very little deliberate and widespread cheating in modern elections, the illusion that everyone cheats all the time may in fact help create a reality in which, well, everyone cheats all the time.

The fiction that Democrats—especially black and Hispanic Democrats—steal elections has gained traction only since 2000. And that fervent belief has rapidly gone from a Bush administration side dish to its main course. This explains last year's firing of at least two U.S. attorneys for their inability to find vote-fraud cases to prosecute, as well as the takeover of the Justice Department's Voting Rights division—which once existed to expand voting rights, rather than constrain them—by myopic vote-fraud crusaders. But evidence of widespread vote fraud just hasn't materialized. Despite a massive Bush administration initiative to smoke out liberal vote fraud, 120 prosecutions between 2002 and 2006 resulted in only 86 convictions, mostly of Democrats and mainly for errors in filling out forms or confusion over eligibility. A 2007 major bipartisan study also found very little evidence of pervasive voter polling-place fraud. Yes. Occasional instances of vote fraud occur. Yes, there is some registration fraud in this country. But that doesn't translate to mischief that swings elections.

So what are we to do with a January 2008 Rasmussen poll showing that—facts notwithstanding—23 percent of us are quite convinced that large numbers of ineligible people are out there voting illegally? Perversely, instead of debunking the myth, last month the Supreme Court treated it as reality. In a crucial decision upholding Indiana's restrictive voter-ID laws, the high court signed off on a solution that was in search of a problem. Laws such as Indiana's have been a partisan legislative response to the myth of rampant vote fraud, but their effect on voting is quite real. Opponents (and even most courts that have upheld the laws) agree that those turned away from the polls for lacking photo ID will be the poor, minorities, the elderly and the disabled—voters that skew Democratic. (As former Texas Republican Party political director Royal Masset told the Houston Chronicle last year, while he believed the vote-fraud hysteria was overblown, an ultimately unsuccessful Texas photo-ID law "could cause enough of a drop-off in legitimate Democratic voting to add 3 percent to the Republican vote." Score!)

Writing for the plurality in Crawford v. Marion County Election Board last month, Justice John Paul Stevens nevertheless upheld Indiana's voter-ID law. Stevens found that even with no evidence of in-person vote fraud in Indiana, "[F]lagrant examples of such fraud in other parts of the country have been documented." He didn't have much meat on those bones either, however. Examples he cited were an 1868 mayoral election in New York City and a single 2004 incident from Washington. Stevens was not concerned by the fact of rampant vote fraud but by the myth of it. He was so focused on protecting wobbly "voter confidence" that he forgot to protect the right to vote, even when voter confidence went wobbly only after partisans started peddling a fictional epidemic in the first place.

Justice Stevens decided Crawford as he did because he found no good evidence that poor, elderly, handicapped and minority voters had yet been disenfranchised by the voter-ID law. He left open the door for them to show in future elections that the voter-ID rules actually barred them from voting. At which time the circle is complete, and the crusade to end imaginary vote fraud will result in real vote suppression. Instead of exposing that vote-fraud bogeyman in the closet to sunlight, the justices gave him a gun.

It is very, very hard to swing entire elections through large-scale polling-place fraud, in part because to do so one needs to organize great numbers of voters willing to commit felonies by registering as Mickey Mouse. And then voting in mouse ears. If we could just put the myth of vote fraud to rest, we would go a long way toward restoring "voter confidence." And those 12 sweet little old nuns you may have read about? The ones turned away from their Indiana polling place in the primary this month because, being 90-year-old nuns, they lacked passports and driver's licenses? Well, if we could all agree that they are not agents of the big, bad vote-fraud bogeyman, we'd not only restore their voter confidence. We'd also restore their right to vote.