Voter Fraud Issue Gets Its Day in Court
The federal court gave the state a chance to show voter fraud was rampant. So what did they prove?
For at least a decade, people have been debating whether there is voter fraud in Wisconsin that needs to be prevented with a measure like photo ID. Lots of hot air on both sides has been expended. But a courtroom provides an opportunity to provide hard evidence in making the case for or against voter fraud.
On Tuesday federal judge Lynn Adelman indicated he was unconvinced by the proof of fraud, and issued a decision declaring the state photo ID law is unconstitutional. Assembly Speaker Robin Vos (R-Rochester) immediately ripped Adelman’s decision as political: “he starts with a heavy liberal bias and not that of a judge.”
Is Vos right? The state had a very skilled lawyer, Wisconsin Attorney General J.B. Van Hollen, making the case for the photo ID law. You’d think he would jump at the chance to bury the court in evidence of all the voter fraud that can be prevented by this new law. In fact, if you read his huge final brief, written after all the trial testimony was taken, Van Hollen offered very weak arguments on that point.
“The defendants could not point to a single instance of known voter impersonation occurring in Wisconsin at any time in the recent past,” Adelman’s decision states. “If it is occurring in Wisconsin to any significant extent, then at trial the defendants should have been able to produce evidence that it is.”
Testifying at the trial was Rutgers University Professor Lorraine Minnite, who specializes in researching the incidence of voter fraud. She studied elections in Wisconsin during the years 2004, 2008, 2010 and 2012 to find any incidents of voter fraud. “She consulted a variety of sources of information, including newspaper databases, news releases by the Wisconsin Attorney General, criminal complaints, decisions by state courts, and documents issued by the GAB. From these sources, Minnite was able to identify only one case of voter-impersonation fraud,” Adelman writes, and that did not involve in-person voter impersonation, which the photo ID requirement is meant to prevent.
M.V. Hood III, a University of Georgia political science professor, who testified for the defendants, nonetheless provided more evidence casting doubt on the likelihood of much fraud through voter impersonation. “Hood’s method for detecting this… involves comparing a database of deceased registered voters to a database of persons who had cast ballots in a recent election,” Adelman writes. “Hood and his coauthor applied this methodology to the 2006 elections in Georgia and found no evidence of ballots being illegally cast in the name of deceased voters.”
“I suppose that’s possible,” Adelman wrote, “but most likely these cases also have innocent explanations and the District Attorney’s office was simply unable to confirm that they did… Moreover, the most Landgraf’s testimony shows is that cases of potential voter-impersonation fraud occur so infrequently that no rational person familiar with the relevant facts could be concerned about them. There are over 660,000 eligible voters in Milwaukee County, and if the District Attorney’s office finds two unexplained cases each major election, that means that there is less than one questionable vote cast… per 330,000 eligible voters. The rate of potential voter-impersonation fraud is thus exceedingly tiny.”
Nor is it easy to commit such fraud, Adelman noted: “A person would need to know the name of another person who is registered at a particular polling place, know the address of that person, know that the person has not yet voted, and also know that no one at the polls will realize that the impersonator is not the individual being impersonated. The defendants offered no evidence at trial to support the notion that it is easy to obtain this knowledge.”
The Journal Sentinel quoted Adelman’s most over-the-top conclusion: “As the plaintiffs’ unrebutted evidence shows, a person would have to be insane to commit voter-impersonation fraud.” But Adelman went on to note: “The potential costs of perpetrating the fraud, which include a $10,000 fine and three years of imprisonment, are extremely high in comparison to the potential benefits, which would be nothing more than one additional vote for a preferred candidate…a vote which is unlikely to change the election’s outcome.”
Van Hollen, however, also asserted that the photo ID law could prevent other forms of voter fraud. As Adelman notes, “the defendants do not adequately explain how that could be so.” Van Hollen indeed spent little time on this issue, while Adelman carefully explained why photo ID was unlikely to stop other kinds of fraud.
Van Hollen seemed far more concerned with other issues he clearly felt were stronger for his side, notably his argument that the photo ID requirement will not have a disproportionate impact on minorities.
There is abundant evidence, however, that minorities are less likely to have a drivers license. A frequently cited 2005 study by the UW-Milwaukee Employment & Training Institute found that in Milwaukee County, 73 percent of white adults, 47 percent of Black adults, and 43 percent of Hispanic adults possessed valid driver’s licenses, while in the balance of the state, 85 percent of white adults, 53 percent of Black adults, and 52 percent of Hispanic adults had valid driver’s licenses.
Van Hollen, however argues that since the state (in 2012) began offering free ID cards, the number of minorities without an ID has likely declined. But he could offer no statistics on this. Prosecution witness, University of Washington Prof. Matt Barreto, offered a survey showing 317,000 registered voters statewide lacked an ID, while Hood, the defense witness, estimated the total could be as low as 167,000.
That’s a lot of voters. “To put this number in context, in 2010 the race for governor in Wisconsin was decided by 124,638 votes, and the race for United States Senator was decided by 105,041 votes,” Adelman wrote.
And minorities and low-income people are far more likely to lack an ID, testimony showed. Prosecution witness, statistician Leland Beatty, concluded that African American voters in Wisconsin were 1.7 times as likely to lack a matching driver’s license or state ID and Latino voters were 2.6 times as likely compared to white voters. Hood actually found an even higher disparity between minorities and whites.
There was abundant testimony from minority voters as to the difficulties of getting the state ID. They must take off from work and take the bus to various agencies to get the needed forms. Often the identification forms don’t match perfectly as to middle initial, which can disqualify them.Typically they must have a birth certificate, but Barreto’s survey showed that more than 25,000 people in Milwaukee County lacked both a qualifying ID and a birth certificate. The cost of the birth certificate is $20, which can be a barrier for poor people.
Conservative state Supreme Court Justice Patience Roggensack has already indicated her concern about this cost, in oral arguments on a challenge to the voter ID law that this court is hearing. “I’m troubled by having to pay the state to vote,” she said.
The problem of getting the birth certificate is all the more complicated if you have to get it from another state. And minorities are more likely to face this challenge. UW-Madison Prof. Barry Burden presented statistics showing 75 percent of white residents were born in Wisconsin, yet only 59 percent of Blacks and 43 percent of Latino residents were born in this state.
Van Hollen, however, repeatedly hammered the point that, whatever the disparities between whites and minorities, the plaintiffs “have not demonstrated that eligible African American and Latino voters are unable to obtain qualifying ID.”
Actually, in a handful of cases involving faulty birth certificates, it appears some people may never be able to vote under this law. But the testimony certainly suggested it can be very difficult to get an ID, which could discourage many from voting. And as Adelman concluded, the federal Voting Rights Act prohibits any law under which members of a class of people “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
Adelman quotes U.S. Supreme Court Justice Antonin Scalia, providing an illustration of the meaning of the Voting Rights Act: “If, for example, a county permitted voter registration for only three hours one day a week, and that made it more difficult for blacks to register than whites,” the law “would therefore be violated.”
Van Hollen, however, offered a blizzard of quotations from case law to dispute what Adelman ultimately concluded. It’s entirely possible the judge’s ruling will be overturned by the higher courts.
But either way, the courtroom testimony showed there is barely a scintilla of evidence that voter impersonation fraud has ever occurred in Wisconsin. It also made clear that the solution to this nonexistent problem, the Voter ID law, will make it far harder for minorities to vote.