By Ernest A. Canning on 9/23/2011, 7:35am PT  

Guest blogged by Ernest A. Canning

A nearly two-hour hearing in the U.S. Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights earlier this month (full video available here), carefully examined the partisan, multi-state effort by the billionaire Koch brothers-funded, Paul Weyrich co-founded American Legislative Exchange Council (ALEC)-fueled GOP effort to enact new state voting laws across the country.

The coordinated, nationwide GOP voter suppression effort was aptly described by Judith Browne Dianis, a civil rights litigator at The Advancement Project, and a witness in the second three-member panel, as "the largest legislative effort to roll back voting rights since the post-Reconstruction era."

"Our country has not seen such widespread attempts to disenfranchise voters as we have seen this year in more than a century. Inclusive democracy is under attack," she testified, while Sen. Sherrod Brown (D-OH) described the "brazen" GOP attempts to undermine the right to vote.

Subcommittee Chair and Senate Majority Whip, Dick Durbin (D-IL) broke the new state voting laws into three major categories, and the discussions of each are worth covering here over two different articles. In Part 1 here, we'll cover the first category: Polling place Photo ID laws restricting the ability of lawfully registered voters to cast their ballot on Election Day. The hearing produced several remarkable face-offs, including between Sen. Al Franken (D-MN) and long-time GOP "voter fraud" front man Hans von Spakovsky (cue James Bond villain music), as detailed below.

In Part 2, we will cover the discussion of the other two categories at the hearing --- draconian new restrictions on voter registration, and laws which significantly reduce early voting periods --- plus a very troubling event that "reactionaries" have planned for the 2012 election, according to Dianis' testimony [UPDATE: Part 2 is now posted here]...

The return of GOP 'voter fraud' fraudster Hans von Spakowsky

During the course of the 9/8/11 Subcommittee Hearing, the core defense of the indefensible fell to the disgraced Hans von Spakovsky, whose nomination by George W. Bush to the Federal Elections Commission (FEC) was blocked by then Sen. Barack Obama (D-IL) because, as Obama explained at the time, von Spakovsky engaged in "efforts to undermine voting rights at the Civil Rights Division during his tenure at the Department of Justice."

[Listen to Brad Friedman go head-to-head with the dishonest von Spakovsky on the Tavis Smiley Show in 2008, when he out-and-out lied, and was called on it. Listen here.]

Michael Slater of Project Vote alleged that, in 2004, he and other groups approached von Spakovsky at the DoJ with physical evidence that public-assisted agencies were failing to offer voter registration to their mostly poor and minority clients in violation of the National Voting Registration Act of 1993. Spakovsky said "that's interesting," before proceeding to take no action.

In the midst of the U.S. Attorney firing scandal, Joseph Rich, who served 35 years in the U.S. Justice Department "enforcing civil rights laws," penned an Los Angeles Times editorial in which he accused Bush appointees to the DoJ of having "ignored the advice of its staff and skewed aspects of law enforcement in ways that clearly were intended to influence the outcome of elections."

As Rich observed at the time:

From 2001 to 2006, no voting discrimination cases were brought on behalf of African-American or Native American voters. U.S. attorneys were told instead to give priority to voter fraud cases, which, when coupled with the strong support for voter ID laws, indicated an intent to depress voter turnout in minority and poor communities.

As The BRAD BLOG later reported, Rich charged, "Mr. von Spakovsky was central to the administration's pursuit of strategies that had the effect of suppressing the minority vote." That effort included a role in the political decision to override career DoJ lawyers who believed Voting Rights Act pre-clearance for Georgia's photo ID law should be denied because of the potential retrogressive impact on African-American voters --- an issue that von Spakovsky sought to deceptively evade during the question-and-answer portion of the 09/08/11 hearing.

Most significantly, emails revealed that von Spakovsky, who temporarily served at the U.S. Election Assistance Commission (EAC) as a Bush recess appointee, attempted to influence the content of EAC reports, expressing a desire that "proper balance" needed to be applied to comprehensive bi-partisan reports on "voter fraud" and photo ID, which showed that claims by GOP front groups (such as the "American Center for Voting Rights" or ACVR, as outed by this blog as such a front group) were overblown in order to fuel restrictive polling place Photo ID legislation.

The Bush appointees at the EAC famously suppressed a draft report by its own panel of experts which negated GOP allegations of widespread "voter fraud" and replaced it with "a report that said the pervasiveness of fraud was open to debate."

GOP 'voter fraud' lie demolished

Perhaps the most striking feature of the Senate Judiciary Subcommittee hearing was the stark contrast between the empty rhetoric offered by the photo ID proponents such as von Spakovsky, and the solid, fact-filled presentations which demonstrated the disparate retrogressive impact of photo ID laws upon minorities, the elderly, the poor, the disabled and college students.

Loyola Law Professor Justin Levitt, both in his oral presentation and in his written testimony [PDF], not only demonstrated that polling place photo ID restrictions are a solution in search of a problem, but established that the "solution" is so ill-fitted to the grossly overstated problem as to be equated to amputating one's foot in order to cure a "potential" hangnail.

There is only one form of "voter fraud" which can be addressed by photo ID laws restricting the right to vote at the polls, the incredibly rare case of in-person impersonation.

Levitt's 2007 "The Truth About Voter Fraud," a study published by the non-partisan Brennan Center for Justice at NYU Law School, "found that 'voter fraud is extraordinarily rare' but did not find a single incidence of voter impersonation." That, the study argues, is for an obvious reason. That type of fraud is incredibly difficult, fraught with risk, and all for the possible gain of one single vote:

To steal even one vote by impersonation requires the impersonator to go to a precinct where he will not be recognized and the registered voter he intends to impersonate will not be recognized. The impersonator has to know that the registered voter has not already voted either in person or by absentee...

Testifying at the 09/08/11 hearing, Rep. Todd Rokita (R-IN), who had served as the Hoosier State's Sec. of State at the time it passed its photo ID restriction law, made the bald assertion that there is "a lot of evidence" of voter fraud; that he'd passed on several cases, but prosecutors declined to pursue them.

As Levitt noted, photo ID supporters failed to offer a single case of voter impersonation fraud occurring in IN when they presented their case to the U.S. Supreme Court in Crawford vs. Marion County Board of Elections. Moreover, it is not just the absence of prosecution but the absence of legitimate allegations which can withstand even minimal scrutiny.

In his written testimony, Levitt revealed that, since 2000, there were "nine allegations of votes [in general elections] that might have involved votes cast by individuals impersonating others," but those nine may be the result of "poll worker error or voter confusion...During the same period, 400 million votes were cast...Even assuming that each of the nine votes were fraudulent, that amounts to a relevant fraud rate of 0.000002 percent. Americans are struck and killed by lightning more often."

Deliberate deception: Franken vs. von Spakovsky

In his sworn Congressional testimony, von Spakovsky, citing a study by the Universities of Delaware and Nebraska, made the bald assertion that photo ID laws do not affect voter turnout in elections. He joined Rep. Rokita in pointing to an increase in African-American turnout in the state of Indiana between the 2004 and 2008 general elections. He also pointed to a similar increase in GA in 2008 where a similarly restrictive law had been implemented. He later added that GA, which enacted photo ID restrictions following the Supreme Court's approval of the Indiana law, had a larger increase in African-American voter turnout in 2008 than did Mississippi, a state which had no such law at the time.

But there are just a few problems with the numbers from both von Spakovsky and Rokita.

Prof. Levitt chided von Spakovsky for using numbers that would cause him to "fail statistics 101 at just about any college in the country." (In his written testimony, Levitt also slammed the "tea leaf reading" analysis provided in the cited "study" --- "The Empirical Effects of Voter-ID Laws" (2009) [PDF], which relies upon data from elections that predate IN's photo ID law, offers no objective facts about the numbers and demographic make-up of registered voters who lack photo ID or difficulties in obtaining government issued photo ID in a given state, and which, on the basis of perceived "socio-demographic and political motivational factors," merely projects the belief of three political science professors that photo ID "laws should have little or no effect on aggregate or individual-level turnout.")

Spakovsky's case relies on a basic misconception, known as "the correlation/causation fallacy," which leads him to erroneously associate increased turnout with the addition of photo ID restrictions.

As Levitt explained:

Mr. von Spakowsky supports photo ID restrictions. I oppose them. Mr. von Spakowsky has no facial hair. I have them. But certainly, opposition to photo ID does not cause facial hair.

Levitt said the 2008 election was "a bad example." For the first time in decades, both GA and IN were battleground states. For the first time in history, an African-American was a Democratic candidate for President. The fact that a given state had an 18% increase in African-American turnout in such circumstances does not, of itself, preclude the possibility that the turnout may have resulted in a 35% increase but for the polling place photo ID restrictions.

Turnout numbers, of themselves, do not permit any conclusions to be drawn about the impact of photo ID, as Sen. Al Franken (D-MI) deftly highlighted.

Franken found von Spakowsky's comparison between GA and MS especially troubling. The Senator expressed his belief that, by citing the increase in African-American turnout in GA relative to MS without considering that "the Black population in Georgia grew at three times the rate in Mississippi" during the relevant period, von Spakovsky had not merely used shoddy statistical analysis, but had attempted to create "an inference that wasn't true."

Observe this embarrassing, and crushing exchange between the two, as highlighted by Talking Points Memo (see a video excerpt at right).:

"For example, Mississippi, a state with a large African-American population just like Georgia, there was only a third [of the turnout among African-Americans] of what it was in Georgia," von Spakovsky said during his testimony.

"Can I ask you something?" Franken interjected. "Do you know how much Mississippi grew in terms of black population during those years versus Georgia?"

"I don't," said von Spakovsky.

"Wouldn't that have to factor into the significance of that?" Franken said. "Here's my question: you did a study and you put in your testimony that it was 'significant' that the percentage of black voters grew more in Georgia than Mississippi and you just cited it again. I would think that, as someone who writes studies, it would be significant to know that the black population grew at more than four times the rate than the black population in Mississippi, and I'm wondering how you didn't factor that in," he said. (Franken later corrected himself to say that the black population in Georgia grew at more than three times the rate.)

Franken said that von Spakovsky left out a crucial piece of data.

"I think that's creating an inference, and either you knew it or you didn't know it, but I think you should have checked it out," Franken said. He also suggested that false voter fraud allegations erode confidence in the voting system.

And then there was this colloquy, when von Spakovsky simply tried to evade Franken's direct question as to whether GA photo ID law has a disproportionate impact on African-Americans...

SEN. FRANKEN: In 1982 Congress amended the Voting Rights Act to prohibit not just voting practices with a discriminatory intent, but also those practices that disproportionately hurt minority voters, regardless of intent...We've heard some very persuasive evidence from your fellow witnesses that these laws, from photo ID laws, to restrictive registration laws disproportionately hurt minority voters. Do you think that they comply with the letter and the spirit of the Voting Rights Act…?

MR. VON SPAKOWSKY: I would agree with Judge Harold Murphy who was a federal judge in GA who found that in fact Georgia's voter ID law was not discriminatory...

PROF. LEVITT: The court did find that there was no violation of Section 2 of the Act...The court did not have a chance to address [Section 5 of the Voting Rights Act] because the Department of Justice is the only entity that has a chance to address it if it signs off …That was a very controversial pre-clearance exercise. I believe that there was a [70-page] staff memo...recommending that the law not be pre-cleared, and then, the very next day, the law was pre-cleared without objection.

Von Spakowsky was well aware of the vital distinction between Section 2 "discriminatory intent" and Section 5 "retrogressive effect." After all, he was one of the Bush appointees who ignored the recommendations of the career DoJ staff contained in that 70-page memo which had recommended that the DoJ deny pre-clearance for GA's polling place photo ID restrictions. He knew that the DoJ pre-approval cannot be challenged in court and, therefore, was not an issue that had been placed before Judge Murphy.

In short, von Spakovsky tried to deceive the U.S. Senate. Again.

Disenfranchised nuns and others in the wake of Crawford

Sen. Lindsay Graham (R-SC) made a passing reference to illegal immigration, which has nothing to do with photo ID polling place restrictions, and cited the Supreme Court's decision in Indiana's Crawford case, by way of underscoring the need to "sanctify" the election process. Graham predicted polling place photo ID restrictions were "the future of this country."

Both Rokita and von Spakovsky claimed that no legitimate voters had been prevented from voting by Indiana's photo ID law, with von Spakovsky noting that no one had filed an "as applied" lawsuit challenging the IN law.

Both Sen. Durbin and Prof. Levitt noted that there had been no evidence of lawfully registered voters being prevented from voting by photo ID in Crawford because the challenge to the law was made before the statute went into effect (commonly referred to in law as a "facial" challenge).

Levitt testified, "All states have some process to make sure that people are who they say they are before they vote." Those requiring government-issued photo ID, however, were a distinct minority because most states "know there are real live, eligible American citizens out there who simply do not have the ID required in the most restrictive states."

Where, Rokita and von Spakovsky made blanket statements about no one being denied the right to vote, Levitt provided specifics, including at least ten retired nuns in South Bend who were turned away from the polls because they lacked the requisite government ID (we covered that issue at the time it happened right here), and "many others among the 137 retired sisters...[who] were dissuaded from voting upon learning that several had been turned away."

"Chris Conley, a 50-year-old veteran of the Navy and Marines, tried to vote in Indiana's 2008 primary, but his Veterans Administration photo ID card did not have an expiration date," Levitt also noted, adding, "I think it's shameful to conceive of even one veteran who has served our country and watched brothers and sisters die to preserve others right to vote...turned away for no good reason."

Messing with Texas

Finally, for now, as explained by Rep. Charles Gonzales (D-TX), who had served as a state court judge for more than a decade:

TX holds bi-annual legislative sessions, which means few surprises. Yet, Gov. Perry declared voter ID a legislative emergency, calling it necessary to combat rampant voter fraud.

Gonzales noted that this "emergency" was declared even though "the TX Attorney General in 2006 in his press release which was entitled, 'Let's Stamp Out Vote Fraud in TX,' couldn't name a single case of fraud that would have been stopped by voter ID."

Would it be too cynical to suggest that Perry's "emergency" was his need to help sew up his home state for the 2012 Presidential election?

[Once again, you can listen to Brad Friedman go head-to-head with von Spakovsky on the Tavis Smiley Show in 2008, discussing many of these exact same issues even back then, right here.]

[UPDATE: See Part 2 of this report, on the Subcommittee's examination of new GOP restrictions on registration, early voting, and their challenge to the Voting Rights Act, right here.]

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).

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