Co-authored by Josh Bone, Campaign Legal Center Legal Fellow
Every two years, in the run-up to national elections, the usual suspects begin to beat the drum about the supposed scourge of voter fraud. So it's hardly surprising that one of the most usual suspects of all, Hans von Spakovsky -- once denied confirmation to the Federal Election Commission because he had used his non-partisan position at the Justice Department to advance the interests of the Republican Party -- has penned an opinion piece in the Wall Street Journal praising states for enacting restrictive voting laws that prevent validly registered poor and minority voters from casting ballots.
It's equally unsurprising that von Spakovsky's piece is riddled with exaggerations and outright falsehoods. Chief among them is the assumption that fraudulent voters regularly tip elections. Despite recent unrelenting focus on documenting voting fraud to justify onerous ballot access restrictions, the best von Spakovsky can do is identify six isolated examples, one of which involved an undercover conservative activist's largely unsuccessful effort to capture on video liberals condoning his proposed fraudulent scheme. Von Spakovsky also makes much of a recent study purporting to find that noncitizen voting can swing close races, but that study has come under heavy fire from statisticians and political scientists for relying on a deeply flawed dataset.
Moreover, von Spakovsky promotes strict voter ID laws, but just two of the voter fraud examples he relies on -- an effort to steal a Mississippi mayoral election, which primarily involved absentee ballot fraud, and an Ohio poll worker's misuse of her office to vote multiple times--involved allegations of in-person voter impersonation fraud, the only type of voter fraud that strict voter ID laws might prevent. And even the strictest voter ID law probably couldn't have prevented the Ohio poll worker, empowered to enforce the election laws, from abusing her public trust. In fact, because of stiff penalties, a high risk of getting caught, and the miniscule probability of affecting the outcome of an election, voter impersonation fraud is vanishingly rare.
While lauding restrictive state voting laws -- a solution in search of a problem -- von Spakovsky says little about the costs these laws impose on voters. Passed almost exclusively in Republican-controlled states, these laws are designed to suppress Democratic votes. This is hardly a secret: the majority leader of the Pennsylvania House even went so far as to assert in 2012 that his state's since-invalidated voter ID law would "allow Governor Romney to win the state of Pennsylvania" -- put differently, he expected that his state's voter ID law would disenfranchise enough minority and low-income voters to skew a presidential election in favor of his preferred candidate. Thank goodness the courts intervened to protect Pennsylvania voters!
If allowed to go into effect, these laws will often end up working as intended. Take the two voter ID cases that von Spakovsky cites as examples of the Department of Justice's and advocacy groups' misguided focus on election protection litigation. In the Texas case, a federal judge determined that Texas's law, the most restrictive voter ID law in the country, would disenfranchise over 600,000 validly registered voters, predominantly low income people and minorities. For that reason among many others, the court concluded that Texas's law was intentionally racially discriminatory and constituted a modern day poll tax. Contrary to von Spakovsky's assertion, the appeals court temporarily stayed that decision due to concerns about changing the rules so close to an election but did not "throw [the decision] out." And in the South Carolina case, the state only "beat Eric Holder's Justice Department" -- von Spakovsky's words -- because, in the face of extensive evidence at trial that the state's strict voter ID law would disenfranchise poor and minority voters, state officials interpreted the law in a way that will allow virtually every South Carolina voter to cast a ballot without showing an ID. The Attorney General would probably take that kind of "loss" any day.
Von Spakovsky claims that he wants to protect our "vibrant democracy" by making it "easy to vote and hard to cheat." But what he really seems to want is to make it harder to vote and not much harder to cheat. Von Spakovsky criticizes efforts by the Department of Justice and advocacy groups to protect the fundamental rights of all Americans, but those efforts remain necessary as long as he and other vote suppressors continue their fight to undermine fundamental rights.