October 17, 2008
The ACORN Hysteria
I'm usually not watching cable news in the morning, but I was watching MSNBC this morning and the lead story was ACORN and voter fraud (this was well before they turned to Michael McDonald's erudite analysis of the electoral map). The report, on the most pro-Democratic of the three news networks, was breathless and incredulous. How could so much fraud be going on? Yesterday, I got a call from CNN and did an interview about the ACORN controversy. I did not realize the segment was for the Lou Dobbs show in a segment about "The Felon Vote." (Transcript here, about halfway down.) And of course FOX is covering ACORN as though it were the financial crisis.
What is totally missing is perspective. Yes, let's take it as a given that, as I've said, ACORN's business model is broken and the level of criminal activity by some of their rogue employees is unacceptable. (I have gotten a lot of pushback about this, mainly falling into two categories: (1) as a percentage of all ACORN employees, the number actually prosecuted is small, or (2) ACORN is no worse than other registration groups, but it is being targeted because of its political leanings. This is a debate we can have another time.)
But we know that fraudulent voter registrations don't translate into election fraud at the polls that has any reasonable chance of influencing an election, much less a presidential election. But that doesn't stop people like John Eastman, on Airtalk with me yesterday, to use the Ohio litigation to claim that up to 200,000 people are committing voter fraud in Ohio. The fact is that because of data entry error, use of nicknames, and other problems completely unconnected to fraud, voter registration rolls will have lots of mismatches. Almost none of it has to do with fraud.The Brennan Center has done unparalleled work demonstrating that most voter fraud claims are bogus, and the little voter fraud that exists in registration and impersonation voting is not affecting the outcome of elections. The same is true of claims of the dead voting. Lots of sensationalist allegations are made, but when they are investigated, it turns out almost invariably to be a case of something besides fraud: a person signing the wrong line in a poll book, a confusion of two people with the same or similar names, or some other problem.
As I wrote in Slate last year:
Third, and perhaps most importantly, the idea of massive polling-place fraud (through the use of inflated voter rolls) is inherently incredible. Suppose I want to swing the Missouri election for my preferred presidential candidate. I would have to figure out who the fake, dead, or missing people on the registration rolls are, and then pay a lot of other individuals to go to the polling place and claim to be Mary Poppins or Old Dead Bob, without any return guarantee--thanks to the secret ballot--that any of them will cast a vote for my preferred candidate. Those who do show up at the polls run the risk of being detected ("You're not my neighbor Bob who passed away last year!") and charged with a felony. And for what--$10? As someone who's thought about this a lot, if I really wanted to buy votes in an enforceable and safe way, I'd find eligible voters who would allow me to watch as they cast their absentee ballots for the candidate of my choice. Then, I would pay them. (Notably, ACVR and supporters of voter-ID laws have generally supported exemptions from ID requirements for voters who use absentee ballots.) Or, I might find an election official to change the votes. Polling-place fraud, in short, makes no sense.
Finally, on the issue of lack of detection: State and local officials have uncovered a fair amount of the absentee-ballot vote-buying I've just described, even though that behavior, too, is illegal and likely hidden from public view. The DoJ devoted unprecedented resources to ferreting out polling-place fraud over five years and appears to have found not a single prosecutable case across the country. The major bipartisan draft fraud report (PDF) (recently posted by Slate and suppressed by the U.S. Election Assistance Commission [TimesSelect subscription required]) concluded that there is very little polling-place fraud in the United States. Of the many experts the commission consulted, the only dissenter from that position was a representative of the now-evaporated ACVR.
So what explains the obsession with ACORN? From Republicans, I think the irresponsible hyperbole of Sen. McCain and some of his "Honest" legal team members serves three purposes:
1. Guilt by association. If ACORN is doing something wrong and Senator Obama is tied to ACORN, that sullies Sen. Obama. It also changes the discussion, which is something you want to do if you are behind.
2. Laying the groundwork for voter purges and voter challenges.
3. Providing a basis to challenge the results of the presidential election in the event of a very close race with Sen. McCain a little behind in a battleground state like Ohio that matters for the results. Remember in 2000 when Republicans called on Al Gore to concede because he had no good legal argument. Voter fraud would be the claim that would be used to distinguish 2000.
And what explains the media's fascination with ACORN and election fraud?
We might ask what the harm is of the ACORN hysteria. I'd say the harm is to voter confidence in the political process, something I'll be tackling in a Findlaw column next week.Posted by Rick Hasen at October 17, 2008 09:03 AM