Article — From the March 2008 issue

Vote Machine

How Republicans hacked the Justice Department

( 3 of 7 )

The first priority of the Justice Department, of course, was not polishing the résumés of fourth-tier law-school grads. It was helping Republicans at the polls at election time. One of the ways the department would accomplish this was by restaffing the branch primarily responsible for making sure Americans are allowed access to the ballot box—the Civil Rights Division—so that it would work actively to prevent minorities from voting. The staff then in place would fight such a subversion with considerable institutional wile, which was why they had to be replaced. The Washington Post reports that in 2005, nearly 20 percent of the division’s lawyers had left, “in part because of a buyout program that some lawyers believe was aimed at pushing out those who did not share the administration’s conservative views on civil rights laws.”

One of the views most passionately held by the new administration was that the business of the Civil Rights Division was not to protect the franchise of historically disenfranchised minorities but rather to prevent the scourge of so-called voter fraud. Hans von Spakovsky, who, as counsel to the assistant attorney general for civil rights, helped formulate the administration’s new voting policies, had in the 1990s written a policy paper, entitled “Voter Fraud: Protecting the Integrity of Our Democratic System,” that anticipated the new thinking. Spakovsky proposed that “the greatest democracy in the history of the world” was “cavalierly undermining the integrity of the most fundamental right its citizens have—their right to vote in fair elections.” This could not stand.

In 2002, Ashcroft launched a “Ballot Access and Voting Integrity Initiative.” In a speech at the time, he said the initiative was designed both to deter voter discrimination, a project that had been the historic basis for the Civil Rights Division’s mission, and also to deter election fraud, which was basically a new mission. It was the Spakovskian fraud, though, that spurred the greatest heights of hysterical rhetoric:

Votes have been bought, voters intimidated, and ballot boxes stuffed. The polling process has been disrupted or not completed. Voters have been duped into signing absentee ballots believing they were applications for public relief. And the residents of cemeteries have infamously shown up at the polls on election day.

Political war stories like these are often told with a grin, but these failures of our democracy are no laughing matter. There is nothing funny about winning an election with stolen votes. And there is no occasion for mirth by the campaigns that commit these offenses. All of us pay the price for voting fraud.

This was all nonsense. In reality, the Justice Department had decided to focus on the acts of specific individuals—voters who may have registered in the wrong district, or who may not have been eligible to vote because of a criminal conviction, or who may have used a false identity in order to vote. Of these, only the last category certainly involves fraud. The others may just as easily be matters of honest mistakes. More to the point, such acts are incredibly rare—certainly far too rare to subvert an election. New York University’s Brennan Center for Justice recently completed an extensive survey of Republican allegations and found that it “is more likely that an individual will be struck by lightning than that he will impersonate another voter at the polls.” The authors noted as well that “inflated claims are not harmless” and that “claims of voter fraud are frequently used to justify policies that do not solve the alleged wrongs, but that could well disenfranchise legitimate voters.”

Chief among those policies is a proposed national voter I.D. law, which most analysts believe would have the effect of suppressing turnout among minorities and other traditionally Democratic-leaning voters. But voter-fraud investigations can also have a suppressive effect in and of themselves.

Republicans discovered this almost immediately upon launching their initiative. The sole large-scale criminal investigation to take place in the wake of the 2002 congressional elections was a total bust in terms of arresting fraudulent voters, but it appeared nonetheless to have had positive long-term consequences for Republicans. When Tim Johnson, one of South Dakota’s two Democratic senators, defeated his Republican challenger, John Thune, by a tiny margin of 532 votes, the Republican reaction was to launch an investigation into the voting activity at several Indian reservations, the citizens of which traditionally had voted for Democrats. Indian Country Day reported that “Republican attorneys fanned out across the state” in order to “gather affidavits to show voting irregularities,” but that “of the 50 affidavits the Republican operatives collected, only three alleged criminal activity, and two of those proved to be false.” Two years later, though, Thune ran against South Dakota’s other senator, Minority Leader Tom Daschle. And in that election, supposedly fraud-wary Republican poll-watchers were now emboldened to follow Indian voters and write down their license-plate numbers. A federal judge ordered them to stop, and they finally did, but Thune won the election in the end, by 4,508 votes.

Logical inference would suggest that suppressing votes and creating an environment in which a national voter I.D. law could be enacted was the true motive of the Justice Department initiative. (Indeed, just this past January, the Supreme Court heard arguments about the constitutionality of an Indiana voter I.D. law.) But logical inference is not necessary in this case. The former political director of the Texas Republican Party, Royal Masset, actually told the Houston Chronicle in 2007 that it is an “article of religious faith that voter fraud is causing us to lose elections,” but then acknowledged that such faith was unfounded. What he did believe, according to the Chronicle’s paraphrase, was that “requiring photo IDs could cause enough of a drop-off in legitimate Democratic voting to add 3 percent to the Republican vote.”

The final proof that the Civil Rights Division enforces the law in a selective manner is that the Justice Department rarely pays attention to Republicans. Both Karl Rove, who as White House political director oversaw much of the Justice Department transition, and Republican commentator Ann Coulter were reported as having committed possible voter fraud, on the basis of their having voted in districts other than those in which they maintained their principal domicile. In Rove’s case, no prosecutorial action was taken. Coulter’s case was somewhat more complex. The Palm Beach County Sheriff’s Office began an investigation, only to call it off after receiving a call from the FBI corroborating an odd and irrelevant claim: Coulter had been unforthcoming about her true address because she had wanted to hide her whereabouts from a stalker.

, an attorney in New York City, writes the daily weblog No Comment for Harpers.org. His last article for Harper’s Magazine, “State of Exception,” appeared in the July 2007 issue.

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