I spoke with Richard Hasen, a University of California, Irvine, election law scholar, while ten Pennsylvania residents were arguing in court that the state’s new voter ID law will disenfranchise them and hundreds of thousands more. In that talk, Hasen said, “Pennsylvania looks like it really doesn’t have its act together, and if that law goes into place it could actually have a significant effect on turnout.” But neither of us really though that would happen, mostly because the hearing seemed to make Hasen’s point so clearly. Less than a week later, a Pennsylvania judge proved us wrong when he refused to block the law.
On Hasen’s election law blog, which is widely read by journalists and academics alike, he wrote that he was “surprised by the ruling.” To understand his bewilderment, you may want to pick up his recently released book, The Voting Wars: From Florida 2000 to the Next Election Meltdown, which details hyper-partisan battles around election reform over the past twelve years that have culminated in courtroom showdowns such as those in Pennsylvania and Texas.
In The Voting Wars, Hasen argues that parties involved in election reform issues fall into one of two camps: one focused on eliminating voter fraud, no matter how little of it exists, and the other focused on expanding voter access—the former occupied by conservatives and the latter by progressives. In our talk, we unpacked what that means along racial lines, specifically around purging, ACORN and the Voting Rights Act.
Before The Voting Wars you developed a reputation for pissing off both the left and right for issuing critiques on both sides of ballot reform issues. Are they equally at fault?
I think that Republicans have been more to blame in the period since 2000 than Democrats, although there is blame on the left, [such as] an exaggeration of the extent to which election changes made by Republicans are going to disenfranchise voters. So for example, there is no good reason to cut off early voting, but it’s not clear that it will negatively affect turnout. In fact, as Democrats publicize acts of what they characterize as voter suppression it actually increases turnout by getting people on the left fired up about voting. In the same way, I think much of this talk about voter fraud is about getting the [right’s] base excited and getting them to come out and vote.
In the book, you say there is a small problem in the nation with non-citizen voting. Explain.
There is some evidence of non-citizens who are registered to vote. There’s much less evidence that these non-citizens are actually voting, but there are occasional cases where it happens. This seems to happen mostly for two reasons: one, a person is on a path to citizenship and doesn’t realize that he or she is not yet eligible to vote. The second is when private parties go in and try to register people to vote and mislead them about whether or not they are allowed to register to vote. There doesn’t seem to be a lot of evidence of non-citizens deliberately signing up to vote knowing that they are not eligible to vote, athough [John] Fund and [Hans] von Spakovsky in their new book [Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk] argue that people do this in order to get other government benefits, and I’d like to see proof of that.
I see this as a pretty transparent partisan attempt to clean the rolls even at the risk of removing the wrong people from the rolls. This is especially going to fall hard on legitimate Latino voters. So it should be done, but it should be done carefully, which is why I’ve called for a moratorium on purging now close to the election.
The Voting Wars is just the latest dismantling of a prevailing myth around ACORN-perpetuated voter fraud, which has been the right’s main weapon against voting rights. How does the right keep this myth alive?
They are a very convenient target, even though they don’t exist [any longer]. ACORN is a name that has resonance and tying current groups to ACORN is a way to try to sully their reputation. It’s important to realize that the main problem with ACORN is that [they] hired employees who falsified voter registration documents in order to get paid. I have yet to see a single case of a proven fraudulent ballot registration submitted by an ACORN employee leading to a fraudulently cast ballot. So Tony Romo, the quarterback, may have registered many times through false registrations submitted by ACORN employees, but you don’t see the false Tony Romos showing up on Election Day to vote.
Also popular on the right these days are claims that turnout from voters of color is boosted by voter ID laws, and also that people of color are most likely to be victims of voter fraud.
On the ID [increasing turnout] issue, the point is totally not proven. You cannot look at, for example, Georgia [turnout] in 2008 among minorities as being caused by Georgia’s voter ID law, as opposed to it being caused by the tremendous enthusiasm there was for Barack Obama’s candidacy. Turnout was up among minorities across the board. The best studies out there show that the voter ID laws in place have perhaps a modest negative effect on turnout, which skews against Democratic voters. In terms of minorities as the greatest victims of voter fraud, I’d point to [Loyola Law School professor] Justin Leavitt’s analysis, which debunks line-by-line and word-by-word the so-called study done by the National Center for Public Policy Research. It wasn’t a study at all, more an unsupported polemic.
The Voting Rights Act will likely be reviewed by the US Supreme Court this year. What’s the chances Chief Justice John Roberts will do for it what he did for affordable healthcare?
Some have suggested the reason Chief Justice Roberts voted the way he did in that case [on the Affordable Care Act] was to give him the political breathing room to be able to do things like strike down affirmative action and the Voting Rights Act. I’m not at all optimistic.
This is an issue that Chief Justice Roberts has been interested in and excited about since the 1980s, when he was the Reagan administration’s point person on the expansion of the Voting Rights Act Section 2. if you read his opinions in the race area, this is something he cares strongly and passionately about. In the last case involving the Voting Rights Act constitutionality, his opinion specifically signaled to Congress that they better fix this law because otherwise we’re going to strike it down. Since then Congress has done nothing.