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The New York Times: Lacking Evidence of Voter Fraud, Legislatures Target Its Specter

This article originally appeared in the New York Times.

By Michael Wines

Of the 860,000 Nebraskans who cast ballots in last fall’s election, only two are suspected of casting fraudulent votes. But while the actual number of illegal voters may be minuscule, State Senator John Murante says, there is an even better reason for Nebraska’s Legislature to crack down on fraud at the ballot box.

“First and foremost, we know the confidence that Americans and Nebraskans have in the election system is at an all-time low,” said Mr. Murante, a Republican who is backing a constitutional amendment that would require all voters to display photo IDs. “The perception exists that voter fraud is a serious issue, and that perception itself has to be addressed.”

Nationwide, Republican state legislators are again sponsoring a sheaf of bills tightening requirements to register and to vote. And while they have traditionally argued that such laws are needed to police rampant voter fraud — a claim most experts call unfounded — some are now saying the perception of fraud, real or otherwise, is an equally serious problem, if not worse.

Given Republicans’ history of raising undocumented claims of fraud, Democrats and voting rights advocates say that citing perceptions of tainted ballots as a reason for voting restrictions is disingenuous at best.

“It seems strange that someone who created the problem of perception then says we have to solve the problem, when there is no problem,” said Lloyd Leonard, the advocacy director for the League of Women Voters, which has sued to block a number of restrictive voting laws.

In states across the country, Republicans are echoing the Nebraska argument for anti-fraud measures.

“It is true that there isn’t widespread voter fraud,” said State Representative Ken Rizer, who steered a bill requiring voters to display IDs through the Iowa House of Representatives this month. “But there is a perception that the system can be cheated. That’s one of the reasons for doing this.”

In Arkansas, State Representative Mark Lowery said his voter ID bill aimed to prevent fraud. But even more important, he added, is that “a large percentage of Americans do not trust the integrity of the electoral system, and that in and of itself is a problem that needs to be solved, because that undermines the basic tenet of democracy.”

There is history to this, said Allegra Chapman, the director of voting and elections at the advocacy group Common Cause. The first Supreme Court ruling to support voter ID laws, in an Indiana case called Crawford v. Marion County Election Board, acknowledged in 2008 that there was zero evidence of voter fraud in the state. But as long as the law inconvenienced everyone equally, it could be legal — even if it deterred “significant numbers” of voters from voting — if it had a “sufficiently weighty” justification. Trust in elections met that standard, the court added, because confidence could be low “if no safeguards exist to deter or detect fraud.”

As real-world evidence of the laws’ impact on minorities has snowballed, the Crawford decision has come under growing criticism. Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit — a highly regarded conservative — wrote the 2007 decision on Crawford that the Supreme Court upheld. But by 2014 he had recanted, issuing a blistering dissent in a Wisconsin voter ID case that called ID laws a “fig leaf” for disenfranchising citizens, and specifically rejecting the claim that bolstering voters’ confidence justified them.

Ms. Chapman said she suspected that the perception argument was a political talking point devised in the wake of several federal court rulings last year that the laws discriminated against Democratic-leaning minorities.

“They’re being clever,” she said. “They’re trying to find some legitimate grounds for which to have these laws pass muster.”

After the Supreme Court handed victory in the 2000 presidential election to George W. Bush, furious Democrats called the vote deeply flawed. Since then, dubious charges of fraud have become a staple of Republican crusades for laws tightening the rules for registering and casting votes. Those charges reached a new peak when President Trump railed against “rigged” elections while a candidate and claimed without any evidence that he would have won the popular vote but for millions of illegal votes cast against him.

Faith in the electoral process has markedly declined since 2000, surveys show. One poll, released in October, concluded that barely four in 10 Americans had great confidence in an accurate vote count.

Voter fraud does happen, of course, sometimes in striking fashion. A former chairman of Colorado’s Republican Party, a radio talk-show host who stated on the air in October that “virtually every case of voter fraud I can remember in my lifetime was committed by Democrats,” was charged this month with voter fraud. The former chairman, Steve Curtis, was accused of filling out a ballot addressed to his ex-wife, who lives in South Carolina.

But voting rights advocates say that widespread fraud is a myth, and that most restrictions are created to keep Democratic-leaning minorities and young adults away from the polls. Judges lately have agreed; last year, federal courts ruled that voter ID laws in Texas, North Carolina, Wisconsin and North Dakota discriminated against minorities.

Many academic studies conclude that anti-fraud laws depress turnout. But the conclusion is not unanimous; this month, researchers at Stanford, Yale and the University of Pennsylvania took issue with one such study concluding that voter ID laws depress Democratic voter turnout far more than Republican turnout. The researchers evaluated the same data used in the study and found “no apparent relationship” between the laws and turnout.

In the wake of Republican claims, bills have been filed in at least 27 state legislatures to stiffen rules or document requirements for registering and voting, according to the Brennan Center for Justice at New York University. At least 16 have proposed new or revised voter ID laws; many more are tightening requirements to register.

Iowa’s voter ID bill, which appears headed for passage in the State Senate, is typical of many, requiring voters to display a driver’s license or non-operator’s license, a military or veteran identification card or a passport. Voters lacking those documents would be able to vote after signing an oath attesting to their identity.

“We are not without fraud,” said Mr. Rizer, who noted that 41 disenfranchised felons cast ballots in November (all but five were discovered before being counted). Critics, including the state’s local election officials, say undetected fraud at the polls is so minuscule that it does not merit re-identifying voters who already proved their identity when they registered.

Among other states, New Hampshire is close to approving legislation to stiffen residency requirements for new voters, including a written warning that law enforcement officers may visit voters’ homes to verify residency. Mr. Trump was able to provide no documentation for a widely derided claim that Massachusetts residents were bused into New Hampshire to cast illegal ballots that contributed to his defeat there.

“Nobody’s saying there’s evidence of widespread fraud,” said Regina Birdsell, a Republican state senator and the bill’s sponsor. “But our voter laws are so broad you could drive a Mack truck through them.”

She added, “There is a perception, as far as I am concerned, that the laws need to be tightened up.”

The Arkansas legislature has already voted to place a constitutional amendment on the state’s 2018 ballot that would require voters to display IDs.

Mr. Lowery’s bill takes a different tack; it would put in place the ID requirement more quickly and without a ballot initiative. Unlike many such bills, his takes an expansive view of acceptable identification — from public-assistance IDs to employee badges to student identification cards. Voters without IDs can cast ballots if they swear they are who they say they are.

“We’re trying to give them every chance,” he said, “but we want them to vouch for their identity.”