[Editor’s note: This is the second installment in a series of special reports that Policy Watch will feature this week looking at voters’ concerns and voting issues in the 2020 election. A third story on the subject of voting machine hacking can be found here on The Progressive Pulse. Tomorrow: the Voting Rights Act and the issue of “preclearance.”]
Trump shifts focus of his accusations from illegal immigrants to advanced voting
TOPEKA, Kan. — Scott Moore had never heard of the Interstate Voter Registration Crosscheck program before election officials in Kansas and Florida exposed his personal information, along with that of 944 other Kansas voters.
The now-defunct Crosscheck was designed to help county clerks clean up registration lists by looking for voters who had moved to neighboring states. But for Kris Kobach, who oversaw Kansas elections as secretary of state from 2011-2019, the outdated software was a tool for propping up his narrative about widespread voter fraud.
Kobach convinced 28 other states to swap voter records through unsecured emails. When the program matched names and birth dates, officials exchanged and manually compared partial Social Security numbers. The program produced false positives more than 99% of the time.
Moore, who served as plaintiff in an American Civil Liberties Union lawsuit that took down Crosscheck, said there are probably thousands of people who share his one-syllable first and last names.
“Boom,” he said. “Must be the same Scott Moore in Florida who is voting down there.”
Kobach, President Donald Trump, various state political leaders, and race-baiting think tanks like the Heritage Foundation use the myth of voter fraud to justify laws and tactics that make it more difficult to vote. Research and court records show voter fraud is extraordinarily rare, but Kobach and Trump have influenced public opinion by frequently repeating debunked claims.
The president appears prepared to use accusations of voter fraud to challenge an unfavorable result in November. In the pandemic-influenced 2020 election cycle, the talking points have shifted to fears that an unprecedented volume of mail-in ballots will lead to rampant fraud.
“They’re being sold,” Trump claimed during last week’s debate. “They’re being dumped in rivers. This is a horrible thing for our country.”
At an appearance in North Carolina last month, Trump even seemed to urge people to vote twice — once by mail and once in person. The statement forced state election officials to issue a hasty warning to voters that such an act would be unlawful.
Advocates for voting rights say there is no evidence to warrant restrictions on voting by mail or intensive purging of voter registration lists.
Kobach alleged rampant voter fraud by non-citizens made it necessary to require voters to produce photo identification and for untrained workers to verify signatures before counting absentee ballots. As he prepared for a trial over his requirement that new voters produce a birth certificate when they register, his office aggressively used Crosscheck to search for evidence to support his claims.
In 2017, Anita Parsa, an election security activist from Mission Hills, Kan., obtained documents showing Kansas and Florida officials comparing voter files flagged by Crosscheck. In the process, the officials inadvertently made the voters’ personal information, including partial social security numbers, public.
Parsa noticed Moore’s address on the list of impacted voters because he lived just two blocks away from her. She called her neighbor to let him know he had become collateral damage in Kobach’s crusade.
Moore didn’t know about Crosscheck, but he knew Kobach. Moore’s father, Dennis, represented the Kansas City, Kan., metro area in Congress from 1999 until 2011 and enjoyed his largest margin of victory over Kobach in 2004.
As Scott Moore looked into Kobach’s use of Crosscheck, he grew increasingly angry — angry enough to sue his father’s old nemesis.
“What they really were trying to find,” Moore said, “was a lot of people crossing the border illegally coming all the way to Kansas, where it was such a huge issue — I’m being facetious, of course — and then trying to vote here for Hillary Clinton.”
Michigan Secretary of State Jocelyn Benson in May sent absentee ballot applications to the state’s 7.7 million registered voters, using federal coronavirus funding.
The effort prompted a presidential tweet. Trump called the Democrat a “rogue,” threatened to withhold funding from the state, and claimed the mailings would lead to voter fraud.
Benson tweeted in response: “Hi again. Still wrong. Every Michigan registered voter has a right to vote by mail.”
Benson’s office reported record voter turnout in the August primary. More than 2.5 million Michigan residents voted. Two-thirds used absentee ballots, an option Benson promoted as a safer alternative to voting in person during the COVID-19 pandemic.
Sean Morales-Doyle, deputy director of the Brennan Center for Justice’s Voting Rights and Elections program, said heightened concerns about voter fraud intertwined with the COVID-19 pandemic have an obvious objective.
“This false rhetoric is used as a catchall reason for opposing any policy that makes it easier for people to vote and
supporting policies that make it harder for people to vote, and I think it’s fairly transparent,” Morales-Doyle said.
The Brennan Center in recent years has worked to correct myths about voter fraud. For example, the Heritage Foundation claims its database includes 1,100 instances of voter fraud nationwide over a 30-year period. An analysis by the Brennan Center found the database actually shows just 10 cases of in-person voter impersonation and 41 cases of non-citizens voting. More than 3 billion votes were cast in federal elections during the same timespan.
This year, the Brennan Center is focused on reassuring people that the longstanding practice of voting by mail is safe and reliable.
“In the 2020 election, what we’re seeing is a concerted effort to make voting by mail more difficult,” Morales-Doyle said. “And again, the rhetoric used to justify the restrictions on voting by mail has been false rhetoric about the prevalence of voter fraud.”
Lauren Bonds, legal director for ACLU of Kansas, said the president has inspired concerns about people falsifying identities to request ballots and other extraordinarily rare or far-fetched criminal activities.
“There are a lot of people who buy into it, a lot of people who unfortunately are going to have less confidence in the results of the election as a result of this rhetoric,” Bonds said. “And, I mean, he knows what he’s doing. That’s why he’s saying it.”
A constitutional law scholar, Kobach expected his proof of citizenship law would be struck down in federal court. The requirement to show a birth certificate effectively froze voter registration in Kansas at a point in time that was favorable to Republicans and blocked more than 35,000 eligible voters from participating in elections.
Kobach needed to rewrite federal law for his restriction to survive a legal challenge by the ACLU. He convinced Trump that Hillary Clinton’s margin of victory in the 2016 popular vote could be explained by masses of illegal Latinx voters. Rather than give Kobach a cabinet post, Trump put him in charge of the Presidential Advisory Commission on Election Integrity.
The short-lived commission found no evidence of illegal votes cast by non-citizen immigrants.
The ACLU made a mockery of Kobach and his “expert” witnesses during the March 2018 trial, just weeks after Trump pulled the plug on the voter fraud commission. Kobach and his aides clashed with U.S. District Judge Julie Robinson, who admonished them for not knowing basic federal court procedures. When the trial was over, she held Kobach in contempt and ordered him to go back to school and reimburse ACLU legal costs. Kobach used tax dollars to pay the consequences.
“I thought we were punching below our weight,” Bonds said. “They were able to bring in their experts. They were able to kind of comb through the data. And they found fewer than 40 people who were not citizens who registered to vote in a 20-year period. Looking at that case, and kind of looking at the impacts of the trial, it was kind of the chance for Secretary Kobach on behalf of all the people who shared his beliefs about the problem of voter fraud to make their case, quite literally, and they weren’t able to do it.”
The court’s directive to Kobach for the trial was to prove that voter fraud is substantial and that his proof of citizenship law was the best way to address the problem. Robinson determined he failed both tests.
Kobach insisted the handful of known cases of voter fraud was just the tip of the iceberg.
“The court draws the more obvious conclusion that there is no iceberg; only an icicle, largely created by confusion and administrative error,” Robinson wrote in her ruling, which found the proof of citizenship requirement to be unconstitutional.
To support his claims, Kobach had enlisted Jesse Richman, a political scientist at Old Dominion University in Virginia, and Hans von Spakovsky, a senior fellow at the Heritage Foundation and former GOP chairman in Fulton County, Ga., where he served on the county’s registration and election board.
Robinson gave little weight to von Spakovsky’s testimony, which was full of opinions but lacked factual evidence. In her ruling, she said his record of flawed and inaccurate claims was replete with bias.
“The lack of academic rigor in his report, in conjunction with his clear agenda and misleading statements, render his opinions unpersuasive,” Robinson wrote.
Kobach paid Richman $5,000 in state funds to measure non-citizen voting in Kansas, ProPublica reported.
Richman had co-authored a widely panned study, based on data from an online survey, that suggested between 38,000 and 2.8 million illegal votes were cast in 2008. Kobach frequently cited Richman’s work in interviews, and it served as the basis for Trump’s claims that illegal immigrants cost him a victory in the popular vote.
Robinson intervened in questioning of Richman and at one point halted his attempt to elaborate on his unscientific methods. The courtroom then fell into chaos with ACLU attorney Dale Ho, Kobach and Richman talking over each other in an attempt to understand Richman’s off-the-cuff calculations.
“Wait, wait, wait,” Robinson said, directing her fury at Richman. “Especially you. You don’t say anything unless there’s a question posed to you. You’re not here as an advocate. You’re not here to trash plaintiffs. You’re not here to argue with me.”
One of Richman’s estimates was based on a survey of 37 individuals with temporary driver’s licenses in Kansas. Six of the 37 said they attempted to register to vote. By Richman’s analysis, that meant roughly 16.5% of the questionable figure of 18,000 adult non-citizens in Kansas must be illegal voters.
Despite the statistically insignificant sample size and Richman’s unweighted calculation, Kobach referred to this as the best possible estimate of illegal voting in Kansas. The ACLU searched the state’s voter registration database and discovered none of the 37 had ever actually registered, let alone cast a vote.
Another Richman analysis was based on 117 foreign-looking names on the state’s suspended voter list. Ho quizzed Richman on what passed for a foreign name.
Ho: “Just hypothetically, Dr. Richman, if you came across the name Carlos Murguia, would you code that as foreign or non-foreign?”
Richman: “Probably would code it as foreign.”
Ho: “Are you aware that Carlos Murguia is a United States District Court judge who sits in this courthouse?”
Richman: “I am not.”
In a recent interview, Richman wondered whether he ever should have published his 2014 paper on non-citizen voting. He said his work doesn’t support the president’s claims that millions of illegal votes were cast in the 2016 election.
Still, Richman insists, it is impossible to have a system that prioritizes both security and accessibility, and he rejects sweeping claims on both sides of the voter fraud discussion.
“I don’t think there’s evidence to support any notion that it’s very widespread,” Richman said. “But on the other hand, you have people trying to claim that election fraud, voting fraud, doesn’t exist or is so completely minimal that we should never worry about it as a matter of public policy.”
A lot of nothing
In July, a civil rights group formed by Black workers brought its election safety concerns to the attention of Ohio Secretary of State Frank LaRose.
The group asked the Republican to add secure ballot drop boxes. LaRose, ProPublica reported, immediately turned to von Spakovsky for guidance. In August, LaRose directed Ohio counties not to install more than one drop box.
ProPublica also reported that, despite his discredited work, von Spakovsky has been conducting secret strategy meetings with Republican state election officials.
LaRose denies the existence of any significant proof of voter fraud, but he identified fraud prevention as a priority for November’s general election. About two million absentee ballot requests have already been filed in the state.
“Candidly, one of the concerns I have is that because of a lot of the rhetoric about absentee voting this year, it could cause people to not want to (vote by mail), even though in Ohio it is a safe and secure process,” LaRose said in a recent news conference.
Last year, LaRose identified 77 non-citizens who cast ballots in Ohio elections, an unusually high number compared to known cases in other states. About 4.4 million Ohioans cast ballots in the 2018 general election.
Morales-Doyle, the Brennan Center attorney, said the failure by purveyors of voter fraud to prove their claims is a recurring theme.
Most recently, he said, the Trump campaign and Republican National Committee sued Pennsylvania Secretary of State Kathy Boockvar, a Democrat, to stop the state from making it easier to cast a ballot by mail. The Brennan Center defended the state’s efforts.
Before dismissing the case, the judge ordered the Trump campaign and RNC to produce evidence to justify concerns with voter fraud.
“They produced a whole lot of nothing,” Morales-Doyle said.
In Maine, former Republican Gov. Paul LePage repeatedly called for stricter voter ID laws during his two terms in office. LePage never provided any evidence that widespread voter fraud was taking place.
Maine Secretary of State Matt Dunlap, a member of the Trump administration’s voter integrity commission, made national news in 2018 when he publicly criticized that group’s mission, saying it was established to create a “pre-ordained outcome.”
“It’s calling into the darkness, looking for voter fraud,” Dunlap, a Democrat, told the Associated Press. “There’s no real evidence of it anywhere.”
In Georgia, Republicans have leveled accusations of voter fraud for years and Democrats have countered with charges of voter suppression. Just days before the 2018 election, then-Georgia Secretary of State Brian Kemp’s office charged the Democratic Party of Georgia of trying to hack the state’s election system, which the state attorney general concluded was false. But the lawsuits keep coming. Judges there are considering at least 17 cases over voter registration purges, long lines, ballot postage, paper ballots, voter registration backups and election security.
In May of this year, the Florida Department of Law Enforcement dismissed allegations of voter fraud dating to hotly contested races in 2018. The agency said it found no proof after 18 months of investigation to support claims by Republican Rick Scott, then the governor and now a U.S. senator, that Democrats tampered with mail-in ballots or that Republicans were denied the right to observe ballot-counting in Democrat-heavy Broward County.
A separate report by Integrity Florida found that voter fraud is extremely rare, and the president’s attacks on voting by mail may decrease turnout by distrusting Republicans.
“Voting fraud is infinitesimal,” said Patricia Brigham, president of the League of Women Voters of Florida. “Since 2000, m
ore than 250 million votes have been cast by mail … and to the best of my knowledge, there have been no red flags.”
High court stakes
Kansas officials in June said they plan to ask the U.S. Supreme Court to consider whether Kobach’s proof of citizenship requirement should be reinstated.
Ho, the attorney who oversees ACLU’s Voting Rights Project, said the attempt “to resuscitate Kris Kobach’s sorry legacy of voter suppression is an insult to Kansas voters.”
But Kobach, appearing on the Kansas Reflector podcast in July, was optimistic about the chances for a favorable ruling from a high court reshaped by Trump. Confirmation of newly nominated Amy Coney Barrett would give conservatives six out of nine seats on the bench.
“One of the things I’ve learned as an attorney over the years — and I’ve been litigating not just election cases but immigration-related cases — is that if it’s a politicized issue, meaning it’s one of those questions that people have strong political opinions, like immigration, like photo ID, proof of citizenship for voting, it matters who your judge is,” Kobach said.
“I’m very confident that at the Supreme Court we will win,” he added, “because I know who the justices are.”
Sherman Smith is the editor in chief of the Kansas Reflector.
The following reporters from States Newsroom affiliates contributed to this report: Laura Cassels of the Florida Phoenix; Stanley Dunlap of the Georgia Recorder; Graham Moomaw of the Virginia Mercury; C.J. Moore of Michigan Advance; Evan Popp of the Maine Beacon; and Susan Tebben of the Ohio Capital Journal.