Richard L. Hasen - The Fraudulent Fraud Squad: Understanding the Battle Over Voter Id: A Sneak Preview from The Voting Wars: From Florida 2000 to the Next Election Meltdown

TheFraudulent Fraud Squad: Understanding the Battle over Voter ID

(A SneakPreview from The Voting Wars: From Florida 2000 to the Next ElectionMeltdown)

Richard L. Hasen

Yale University Press

New Haven and London

Copyright 2012 by Richard L.Hasen.

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This material is from theforthcoming book The Voting Wars: From Florida 2000 to the Next ElectionMeltdown, by Richard L. Hasen, to be published in summer 2012. This excerpthas been set for this edition only and may not reflect the final content of theforthcoming edition.

eISBN: 978-0-300-18748-9

TheFraudulent Fraud Squad: Understanding the Battle over Voter ID

Mario Gallegos had undergone a liver transplant inHouston, and after tests showed elevated enzyme levels and the possibility ofrejection, he needed a biopsy. Gallegos had complications after the biopsy, andagainst his doctors advice, he went to Austin and was resting in a hospitalbed installed inside the Texas capitol building.

Gallegos was a Democrat representing the Houston area inthe Texas Senate. In May 2007 he was the only person standing in the way of thestates adopting a strict voter identification law requiring people to show aspecified form of photo ID before they could vote. Republicans outnumberedDemocrats twenty to eleven in the state senate and also controlled the TexasHouse. Rick Perry, the governor who succeeded George W. Bush, was also aRepublican. Gallegoss vote was needed for Democrats to block the law until theend of the legislative session. Under the Texas Senates two-thirds rule, underwhich no legislation could be brought up unless two-thirds of senators presentvoted to do so, all eleven Democratic senators had to vote against taking upthe bill, or Republicans could take it up and pass it.

Republicans could have agreed to shelve the matter forthe year, but they didnt. Instead, Gallegos lay in a hospital bed in theSenate sergeants office near his senate desk waiting for the next called vote.

The Republicans could have behaved worse. Bob Duell, aRepublican senator who is also a physician, arranged for the hospital bed to besent to the capitol. The senate leaders did not call the vote the day Gallegoswas actually undergoing the biopsy. But it may not have been all kindness:Republicans worried that if they passed the bill in Gallegoss absence,Democrats would retaliate by blocking other bills. With Gallegoss help,Democrats ran out the clock. Ill be back, and if you want to fight this fightagain, Ill fight it with you, Gallegos told his colleagues, who gave him astanding ovation.

Texas did not adopt a voter identification bill in 2007.In the 2008 elections, Democrats gained a seat in the Texas Senate, reducingthe Republican edge to nineteen to twelve and giving Democrats a one-votecushion under the two-thirds rule. But as the first order of business in the2009 session, Republicans passed a special rule that exempted voteridentification billsand only such billsfrom the two-thirds rule. Voter IDcould be taken up by a simple majority vote.

Democrats again used stalling tactics to prevent the billfrom becoming law in 2009 and 2010. Senator Gallegos told the San AntonioCurrent that the voter identification law was really targeted atsuppressing minority voters. Its partisan, its the old Karl Rove [trick] backagain.... The Republican Party is seeing census numbers that the Latinocommunity is voting in record numbers.... So I think... its a last gaspto try and suppress the vote.

But in 2011 Governor Perry declared the voteridentification bill an emergency item, meaning that the state legislaturecould debate it right away without waiting for the first sixty days of thesession as normally required. Voter ID was still exempted from the two-thirdsrule. Democratic stalling tactics ran out. Perry eventually signed the toughestvoter identification law in the nation, tougher than the one proposed in 2009.It included a provision that made a college students identification cardinvalid as ID for voting. The right to vote is simply too important for us totake the act of voting lightly, Perry said. Today with the signing of thisbill, we take a major step forward in securing the integrity of the ballot boxand protecting the most cherished right we enjoy as citizens. (As I writethis, Texas awaits approval for its law from the United States Department ofJustice or a three-judge court in Washington, D.C., which under the VotingRights Act must approve changes in voting rules in jurisdictions with a historyof racial discrimination in voting. The Obama Justice Department deniedapproval of South Carolinas law on the grounds that it could have a raciallydiscriminatory impact, and it was expected to deny approval of Texass law,too. Perry, a candidate for the 2012 Republican presidential nomination, respondedat a Republican debate to a question from FOX Newss Juan Williams about thepreclearance requirement for states with discrimination by declaring that thestate of Texas is under assault by the federal government.... South Carolinais at war with this federal government and with this administration.)

Texas was not alone. Between 2005 and 2007, ten statelegislatures considered new voter ID legislation, and it was basically aone-party affair. In state after state with Republican-dominated legislatures,bills proposed strict new voter identification rules requiring voters toproduce a photographic identification card from a list of acceptable cards orrisk losing the right to vote. According to a U.S. Supreme Court brief filed byhistorians and other scholars in a challenge to Indianas law, If the houseand senate votes for these ten bills are combined, 95.3 percent of the1,222 Republicans voting and just 2.1 percent of the 796 Democratsvoting supported the bills.

The tide of voter identification laws grew inanticipation of the 2012 elections, and this time many of them passed.Republicans promoted the measures as necessary to prevent fraud and ensurevoter confidence. Democrats countered that the laws would disenfranchise manyeligible voters and were a form of vote suppression of minorities, though moreDemocratic legislators began signing onto the legislation as the 2012 electionsapproached. Neither side offered much evidence. The battles often wereprolonged, with much more heat than light.

How did we get to this point of having pitched battlesover the technical rules for casting a ballot? Couldnt the question wait forSenator Gallegoss recovery? If they cant agree on policy, why cant Democratsand Republicans at least agree on the facts about whether voter identificationlaws really deter significant amounts of fraud? Enter the Fraudulent FraudSquad.

Dick Armey, theformer Republican U.S. House majority leader from Texas, was speaking at afancy lunch in Newport Beach, California, to the Lincoln Club, a conservativepolitical group in Orange County, in the run-up to the 2010 midterm elections.Accusing Democrats of widespread voter fraud, Armey claimed that 3 percent ofballots cast were fraudulent Democratic ballots. Im tired of people beingRepublican all their lives and then changing parties when they die, Armey toldthe group. He offered no evidence to back up the statistic, nor did heapologize for the lame joke.

Armey is the CEO ofFreedomworks, a Tea Party group funded by the Koch brothers. He made similarclaims as early voting began in 2010. Speaking to Neil Cavuto on Fox News,Armey gave his explanation for statistics showing a rise in early votingmanystates allowing voting to take place at state vote centers in the days or weeksleading up to Election Day, as a convenience to votersand the fact thatDemocrats seemed to be turning out in greater numbers than Republicans to voteearly: