Last week, Paul Schurick, the campaign manager for former Maryland Governor Robert Ehrlich, was convicted of two counts of conspiracy to violate election laws and two counts of election fraud for orchestrating a scheme of robo-calls intended to deter 100,000 Democratic African-American voters from voting in the City of Baltimore and Prince George's County Maryland.
The robo-calls, delivered in a woman's voice, assured Democratic voters that the Democratic Governor Martin O'Malley had already won the election as of 6:00 p.m. on Election Day 2010.
"Our goals have been met. The polls are correct and we took it back. We're OK. Relax. Everything's fine. The only thing left is to watch it on TV tonight."
At trial, Schurick argued his intention was to anger voters sympathetic to his candidate in order to motivate them to vote. A jury rejected his argument and found Schurick's intent was to mislead and discourage Democratic African‑American voters from going to the polls.
Schurick's conviction comes in the midst of a robust national debate about the importance of ballot security and how to protect American elections. Since January 2011, 15 states passed laws - with more legislation currently pending in Michigan, Minnesota, Pennsylvania and Virginia, among others - that burden individual voters by making it harder for citizens to register and to vote. These efforts range from eliminating early voting on Sunday, to making it more difficult for citizens to register, to requiring a specific kind of government-issued photo ID to vote. In almost all cases these laws are justified as a means to prevent voter fraud. This justification fails.
Simply put: these laws do nothing to prevent voter fraud, while putting up unnecessary barriers to the ballot for millions. Making it all but impossible for the League of Women Voters to register citizens in Florida -- as a new law does -- will not prevent someone who wants to submit a false registration form from doing so, but it could keep thousands from ever getting on the voter rolls. Eliminating days available for early voting will not keep supposed "fraudsters" from the polls, but it will affect the 1-2 million voters who used those early-voting days to vote in the 2008 elections. Requiring a driver's license, gun permit, military ID or passport to vote (while not allowing student IDs or public benefit cards) will not improve the security of our elections, but it may prevent the 3.2 million citizens without the right kind of photo ID from voting. All total, up to 5 million American citizens may be affected by these laws, with no evidence that any voter fraud will be prevented.
These new laws raise concerns for the 2012 presidential election. Five million votes is greater than the margin of victory in 2 of the last 3 presidential elections. Moreover, there are a total of 175 electoral votes controlled by the states that enacted laws imposing new restrictions on voting and voter registration for the 2012 election - equaling 65 percent of the 270 electoral votes needed to elect the next President.
Conversely, the "voter fraud" evangelicals ignore the very real problems created by voter deception. In a case before him in 2009, federal Judge Dickinson Debevoise found that voter intimidation tactics present an ongoing threat to participation in the political process" and continue to pose a far greater danger to the integrity of the process than the unproven and undemonstrated threat of voter impersonation and improper voter registration.
The distribution of misinformation about elections and voter eligibility undermines public confidence and discourages citizens from participating in the electoral process. Examples of voter deception include:
· In 2002 in Louisiana, flyers in an African American neighborhood inaccurately told voters they would be able to vote three days after the election.
· In 2004 in Ohio, flyers in Franklin County told voters that due to heavy voter registration, Republicans should vote on Tuesday and Democrats should vote on Wednesday.
· In 2006 in Virginia, voters living in areas with large minority populations received calls incorrectly reporting that their polling places had changed.
· In 2008 in Philadelphia, fliers posted near Drexel University incorrectly warned that police officers would be at polling places looking for individuals with outstanding arrest warrants or parking tickets.
· In the 2006 midterm election, 14,000 Latino voters in Orange County, California received mailings from the California Coalition for Immigration Reform, warning them in Spanish that "if you are an immigrant, voting in a federal election is a crime that can result in incarceration" without reference to the fact that a naturalized immigrant may legally vote.
Other types of suppressive voter activity by political operatives or private citizens are:
Voter caging: efforts to identify and disenfranchise registered voters solely on the basis of an undeliverable mailing;
Voter intimidation: conduct that intimidates or threatens voters into voting a certain way or refraining from voting; and
Discriminatory or intimidating voter challenges: formal challenges to the eligibility of persons presenting themselves to vote either at the polls or prior to Election Day in a way intended to intimidate voters or in an intentionally discriminatory pattern.
Paul Schurick's conviction evidences the type of activity that is well-documented and clearly demonstrated to be a real problem.
Niomi Rosenberg, one of jurors from the Schurick trial said it best: "Suppression of the vote is a very big problem. Our country is founded on the right to vote."
Keesha Gaskins serves as Senior Counsel for the Democracy Program at the Brennan Center for Justice at NYU School of Law.