71 Tova Wang later wrote that there was no “smoking gun showing political motives in the handling of the draft.” Washington Post, 30 August 2007. The Inspector General’s report was prompted both by news articles and by expressions of concern by Congressional committees. Submitted in March 2008, the report concluded that there was “no evidence to support allegations that the changes were made to the report due to improper reasons or political motivations.” At the same time, it cited interviews with commissioners and staffers suggesting that political pressure was applied to keep the draft report from being released. U.S. EAC, Office of Inspector General, “Report of Investigation: Preparation of the Voter Fraud and Voter Intimidation Report,” March 2008, 1, 13-16.
72 New York Times, 11 April 2007; Minnite, Voter Fraud, 9.
73 Hearne testimony, Committee on Administration, 21 April 2005; ACVR, “Vote Fraud, Intimidation and Suppression,” entire, quotation from p. 1. Another key figure in the ACVR was Jim Dyke, who had worked for the Republican National Committee and later was employed by Vice President Cheney. Brian Lunde, a board member of the ACVR, was officially a Democrat and had co-chaired Democrats for Bush in 2004. The Brad Blog, 15 March 2007, http://www.bradblog.com/?p=1708.
74 National Public Radio, Morning Edition, 6 June 2007; ACVR, “ACVR Praises Carter-Baker Commission Report,” press release, 22 September 2005; Thor Hearne to John Tanner, Chief, Voting Rights Section, Department of Justice, 20 April 2006; Richard L. Hasen, “The Fraudulent Fraud Squad: The Incredible, Disappearing American Center for Voting Rights,” Slate, 18 May 2007; Bob Fitrakis, “Ohio, the DOJ Scandal and ‘Thor’—the god of voter suppression,” Independent News Media, 18 June 2007; Pittsburgh Tribune-Review, 8 August 2005. For numerous articles regarding the ACVR, penned by Brad Friedman, a blogger whom Hearne later blamed for the demise of the organization, see The Brad Blog, http://www.bradblog.com/?page_id=4418. Refutations of some of the ACVR’s fraud allegations can be found in Minnite, Voter Fraud.
75 New York Times, 14 March, 16 March, 18 March and 29 March 2007; ibid., 12 April and 20 April 2007; Washington Post, 13 March, 26 March and 30 March 2007; ibid., 19 April 2007; ibid., 11 May and 14 May 2007; Joseph Rich, “Playing Politics with Justice,” Los Angeles Times, 29 March 2007; Boston Globe, 6 May 2007; Michael Isikoff, “Fuel to the Firings,” Newsweek, 21 August 2007; “Inside the Scandal At Justice,” Time, 21 May 2007, 44-49; Seattle Times, 17 May 2007; Baltimore Chronicle and Sentinel, 10 March 2008. Seven of the federal prosecutors were fired on December 7, 2006; Graves had resigned, under pressure, in March, 2006. In all of the cases mentioned, it is known that the White House—and particularly Rove’s office—communicated its displeasure to the Justice Department. One of the other targeted prosecutors was Tom Heffelfinger of Minnesota who happened to resign before the firings were put into effect: he had resisted efforts to prohibit Native Americans from using tribal ID documents to vote when they were not on reservations. (See Los Angeles Times, 31 May 2007 and Houston Chronicle, 3 June 2007. Evidence that Native-American voting issues were involved in several of the firings is presented in Tanya Lee, “Ex-Justice Official: Native American Vote May be Issue in U.S. Attorney Firings,” Targeted News Service, 11 July 2007).
76 Jason Leopold, “Bush Operative Pushes Voter-ID Law,” The Public Record, 14 May 2008, http://www.pubrecord.org/index.php?vie w=ar tic le&id=41%3Abushoperativepushesvoter-id law&option=com_content&Itemid=9 ; Greg Gordon, “Was Campaigning Against Voter Fraud a Republican Ploy?” McClatchy Newspapers, 1 July 2007; Joe Palazzolo, “From Fired U.S. Attorneys, Blame for Gonzales, not Bush,” The Legal Intelligencer, 26 November 2007; Washington Post, 28 August 2007; New York Times, 30 March 2007; ibid., 27 and 28 August 2007; Baltimore Chronicle and Sentinel, 10 March 2008. Gonzales may have committed perjury in testimony to Congress, as he attempted to conceal his own role and the role of the White House in the firings. His chief of staff, D. Kyle Sampson, testified (after resigning) that Gonzales’ testimony had been inaccurate. In September, 2008, the Department of Justice released a severely critical report on the firings, based on an extensive internal investigation; the attorney general also announced the appointment of a special prosecutor to continue the investigation. New York Times, 30 September 2008; Washington Post, 30 September 2008.
77 New York Times, 12 April 2007; Christian Science Monitor, 5 April 2007; Jeffrey Toobin, “Poll Position,” The New Yorker, 20 September 2004.
78 Gordon, “Campaigning”; Minnite, Voter Fraud, 3-4, 8-9, 12-13, 17-36. As Minnite observes, there are no reliable state or national statistics on vote fraud. See also Minnite and Callahan, Securing the Vote, 39-49.
79 Capital Times, 12 September 2008; Brennan Center, “Florida Voting Law May Disenfranchise Thousands,” 12 September 2008, http://www.alternet.org/story/98609/; Detroit News, 12 September 2008; Eartha Melzer, “Lose Your House, Lose Your Vote,” The Michigan Messenger, 10 September 2008; Tallahassee Ledger, 14 September 2008; Greg Gordon, “Election Officials Telling College Students They Can’t Vote,” McClatchy Newspapers, 15 September 2008; Elizabeth Redden, “Warning for College Student Voters,” Inside Higher Ed, 3 September 2008, http://insidehighered.com/news/2008/09/03/voting; New York Times, 22 July 2008; ibid., 10 August 2008; ibid., 9 September and 25 September 2008; ibid., 16 October, 23 October and 27 October 2008; American Civil Liberties Union, “Advancement Project and ACLU Sue Michigan Secretary of State Over Unlawful Voter Purging,” ACLU press release, 18 September 2008, http://www.aclu.org/votingrights/gen/36836prs20080918.html; Los Angeles Times, 20 September 2008; Daily Texan, 29 September 2008; Columbus Dispatch, 26 September 2008; Stephen Majors, “Three Courts Clear Way for Early Voting in Ohio,” Associated Press, 29 September 2008; American Civil Liberties Union of Ohio, “ACLU Asks Court to Allow Rejected Absentee Ballot Applications,” press release, 2 October 2008, http://www.acluohio.org/pressreleases/2008pr/2008.10.02.asp; Corey Dade and John D. McKinnon, “Voter Registration Is the New Battleground,” Wall Street Journal online, 12 August 2008; Amy Merrick, “Ohio Republicans Use Lawsuit,” Wall Street Journal online, 13 September 2008; Richard Hasen, “The Ground Game,” Slate, 18 September 2008; Tim Jones, “Voting Goes to Court,” Chicago Tribune.com, 2 October 2008; Plain Dealer (Cleveland), 2 October 2008.
80 Lara Jakes Jordan, “Officials: FBI investigates ACORN,” Associated Press Online, 16 October 2008; Daily News (New York), 16 October 2008; Investor’s Business Daily, 16 October 2008; Philadelphia Inquirer, 16 October 2008; St. Louis Post-Dispatch, 16 October 2008; Ann Sanner, “ACORN defends efforts,” Associated Press, 15 October 2008; Deseret Morning News, 17 October 2008; New York Times, 17 and 24 October 2008; USA Today, 15 October 2008.
81 Los Angeles Times, 16 October 2008; San Francisco Chronicle, 16 October 2008; Deborah Hastings, “GOP Vitriol Rages Over Community Group,” Associated Press Online, 17 October 2008; New York Times, 27 October 2008; Washington Post, 5 November 2008; CBS, “Voting Problems: ‘Much Ado About Nothing,’” 5 November 2008, http://www.cbsnews.com/stories/2008/11/05/cbsnews_investigates/main4576402.shtml.
82 Electionline.org, “Voter ID Laws,” January 2008, http://www.pewcenteronthestates.org/uploadedFiles/voterID.laws.6.08.pdf. In January 2009, a former ACORN worker in Missouri was indicted on two counts of registration fraud, but there were no allegations that any illegitimate votes had been cast. St. Louis Post-Dispatch, 6 January 2009.
83 Fund, Stealing, 136-138; Thor Hearne, “Make Cheating Tough,” USA Today, 1 January 2008; ACVR, “Supplemental Comment Letter to John Tanner, Chief, Voting Rights Section, Department of Justice,” 20 April 2006; Garrett Epps, “The Voter ID Fraud,” Nation, 28 January 2008. Hearne argued that “photo ID is the kind of confidence-building measure that is warranted in light of past fraud.” Washington Post, 3 November 2006. The official name of the Carter-Baker Commission was the Carter-Baker Commission on Federal Election Reform. Several members of the commission dissented vigorously from this recommendation. Commission on Federal Election Reform, “Buil
ding Confidence in U.S. Elections,” September 2005, 18-21, 80, 88-90, http://www.american.edu/ia/cfer/report/full_report.pdf.
84 Fund, Stealing, 138; Overton, Stealing Democracy, 155; Garrett Epps, “Karl Rove’s Big Election-Fraud Hoax,” Salon.com, 10 May 2007; Hasen, “Fraudulent Fraud Squad”; Jim Suillinger, “Sebelius Vetoes Bill Requiring Voters to Show Photo ID,” KansasCity.com, 19 May 2008; cf. The Lawrence (Massachusetts) Eagle-Tribune, 5 June 2008. According to Senator Dianne Feinstein, “no federal cases of impersonation voter fraud” had been successfully prosecuted between 2002 and the spring of 2008. “Opening Remarks of Senator Feinstein,” Senate Rules and Administration Committee Hearing, 110th Cong., 2d sess., 12 March 2008.
85 Overton, Stealing Democracy, 152-155; “Could a Photo ID Law Hurt Representation at Polls?” National Public Radio, 20 September 2006, 9 AM; New York Times, 24 September 2007; Tova A. Wang, “Carter-Baker’s Risky Scheme,” PR Newswire, 22 September 2005. Disabled voters constituted another group that could be disproportionately affected by ID laws.
86 For a summary of such laws, see “Requirements for Voter Identification,” National Conference of State Legislatures, http://www.ncsl.org/programs/legismgt/elect/taskfc/voteridreq.htm (updated periodically, here based on 1 February 2007 and 9 January 2008). An increasing number of states requested photo ID but permitted other forms of identification. All states offered the possibility of casting provisional ballots for those without ID, but Indiana and Georgia required voters to return within a few days and present their photo IDs to officials if their provisional ballots were to be counted.
87 “Requirements for Voter Identification,” National Conference of State Legislatures, 2008, 1-2; USA Today, 24 January 2007; Los Angeles Times, 12 September 2006; Albuquerque Journal, 5 October and 28 October 2005; ibid., 14 February 2007; Washington Post, 21 October 2006; Arizona Capital Times, 31 August 2007; Greg Gordon, “2006 Missouri’s Election was Ground Zero for GOP,” McClatchy Newspapers, 3 May 2007; Epps, “Karl Rove’s Hoax,” 2-3. Regarding Georgia’s law, see New York Times, 20 July 2005; ibid., 25 January 2006; ibid., 8 July 2006; Washington Post, 28 October 2005 and 20 September 2006; ACLU, “Voting Rights Advocates Challenge Georgia Photo ID Law,” press release, 19 September 2005; Shannon McCaffrey, “State Begins Education Effort for Voter ID Law,” Associated Press, 10 August 2007; Errin Haines, “Federal Judge Tosses Suit,” Associated Press, 7 September 2007; Florida Times Union ( Jacksonville), 7 September 2007; Atlanta Constitution, 7 September 2007. According to the Washington Post (17 November 2005), four out of five career officials in the Justice Department recommended against preclearing the Georgia law, but they were overruled by political appointees. Revealing elements of the history of Georgia’s law can be found in Tova A. Wang, Fraud, Reform, and Political Power: Controlling the Vote, from Nineteenth-century America to Present-day Georgia, The Century Foundation: Issue Brief, 7-10, http://www.tcf.org/Publications/electionreform/wang_historyvoterfraud.pdf.
88 New York Times, 26 and 27 September 2007; ibid., 7 January 2008; Jeffrey Toobin, “Fraud Alert,” New Yorker, 14 January 2008, 28.
89 Crawford v. Marion County Election Bd., 553 U.S. ___(2008) (Stevens, J. opinion 11, 12, 15, 17, 18), (Souter, D. dissenting 3, 7, 30), available at http://www.supremecourtus.gov/opinions/07pdf/07-21.pdf. Justice Stephen Breyer wrote a separate dissent. Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito, Jr., concurred with the decision while maintaining that there was no reason for the court to even assess the impact of the law on any individual voters because it was “a generally applicable, nondiscriminatory voting regulation.” New York Times, 29 April 2008; Washington Post, 29 April 2008; Los Angeles Times, 29 April 2008.
90 Chicago Tribune, 28 April 2008; New York Times, 29 April 2008; ibid., 12 May, 13 May and 17 May 2008; KTAR.com, “Arizona to Seek Dismissal of Challenge to Voter ID Law,” 27 May 2008; “New Lawsuit Filed Challenging Voter ID Law,” Associated Press (Indianapolis), 20 June 2008; Atlanta Journal-Constitution, 29 April 2008; “Republicans Plan to Push for New Voter ID Law in Alabama,” Associated Press State and Local Wire, 29 April 2008; San Jose Mercury News (California), 29 April 2008; St. Louis Post-Dispatch, 29 April 2008; Albuquerque Journal, 29 April 2008; Houston Chronicle, 29 April 2008. In 2006, Republicans in Congress had also sponsored the Federal Election Integrity Act of 2006, which would have imposed a national requirement for photo ID as well as proof of citizenship to register to vote. Efforts to pass such a law were stalled by the election of Democratic majorities in November 2006. Deseret Morning News (Salt Lake City), 20 September 2006; U.S. Congress, House, Federal Election Integrity Act of 2006 (H.R. 4844), 109th Congress, 2d sess. A website tracking state bills requiring proof of citizenship to register is maintained by the Brennan Center for Justice at NYU; see http://www.brennancenter.org/content/resource/proof_of_citizenship_requirements_chart_of_state_legislation/.
91 The findings of the early rounds of scholarship regarding the impact of ID requirements are not uniform, but most do find some impact on turnout, especially the turnout of the less educated and the less well-off (particularly with stricter ID requirements). A valuable summary of the literature (as well as a good listing of research studies) is contained in R. Michael Alvarez, Delia Bailey, and Jonathan N. Katz, “The Effect of Voter Identification Laws on Turnout,” California Institute of Technology: Social Science Working Paper 1267R, January 2008. A thoughtful, recent survey of the terrain can be found in Richard Sobel, “Voter-ID Issues in Politics and Political Science,” PS: Political Science and Politics (January 2009): 81-85. See also John Logan and Jennifer Darrah, “The Suppressive Effects of Voter ID Requirements on Naturalization and Political Participation,” Brown University: Report of the American Communities Project, 2 January 2008, http://www.s4.brown.edu/voterid/, and David B. Mulhausen and Keri W. Sikich, “New Analysis Shows Voter Identification Laws Do Not Reduce Turnout,” Heritage Foundation Center for Data Analysis, 11 September 2007, http://www.heritage.org/Research/LegalIssues/cda07-04.cfm. Regarding Indiana, see South Bend Tribune (Indiana), 7 May 2008 and 5 November 2008. Regarding Georgia, see Karen Handel, “Voters the Real Winners in Recent Elections,” Atlanta Journal-Constitution, 17 November 2008. The Georgia case illustrates one of the methodological difficulties of determining the impact of ID laws: turnout, as a percentage, declined from 2004 to 2008 but the number of persons casting ballots increased.
92 Opening statement of Senator Herb Kohl, U.S. Senate Special Committee on Aging Hearing, “Older Voters: Opportunities and Challenges for the 2008 Election,” 110th Cong., 2d sess., 31 January 2008.
93 Frank and Nicole Stoops, U.S. Census Bureau, Census 2000 Special Reports, Series CENSR-4, Demographic Trends in the 20th Century (Washington, DC: GPO, 2002), 59, figures 2.6 and 2.7; testimony of Honorable Deborah L. Markowitz, Vermont Secretary of State, Committee on Aging, 31 January 2008. An estimated 789,000 persons lived in assisted living centers and 1.6 million in nursing homes in the first years of the twenty-first century. Jason H. Karlawish, Richard J. Bonnie, Paul S. Appelbaum, et al., “Identifying the Barriers and Challenges to Voting by Residents in Nursing Homes and Assisted Living Settings,” Journal of Aging and Social Policy 20 (2008): 65-79.
94 Kay Schriner and Lisa Ochs, “‘No Right is More Precious’: Voting Rights and People with Intellectual and Developmental Disabilities,” Policy Research Brief, University of Minnesota Institute on Community Integration (2000), 4-5; Kay Schriner, Lisa Ochs, and Todd Shields, “Democratic Dilemmas: Notes on the ADA and Voting Rights of People with Cognitive and Emotional Impairments,” Berkeley Journal of Labor and Employment 21 (2000): 438-439. In addition, the National Voter Registration Act of 1993 required that states designate disability service agencies as places of voter registration. Statement of Barbara D. Bovbjerg and William O. Jenkins, “Elderly Voters: Some Improvements in Voting Accessibility from 2000 to 2004 Elections, but Gaps in Policy and Implementation Remain,” testimony before the Committee on Aging, 31 January 2008.
95 Testimony of Michael E. Waterstone, Committee on Aging, 31 January 2008; National Disabilities Rights Network, 4 December 2007, http://www.napas.org/issues/voting/hava; statement of Senator Kohl; statement of Bovbjerg and Jenkins. Regarding turnout in 1998 and 2000, see Lisa Schur, Todd Shields, Douglas Kruse, and Kay Schriner, “Enabling Democracy: Disability and Voter Turnout,” Political Research Quarterly, 55 (March 2002): 167-190, and Lisa Schur, Todd Shields, and Kay Schriner, “Generational Cohorts, Group Membership, and Political Participation by People with Disabilities,” Political Research Quarterly, 58 (September 2005): 487-496.
96 See Table A.9 for the laws as of 1855; see also Schriner and Ochs, “‘No Right,’” 3.
97 This was precisely the era of the “rise of the asylum,” the period when institutional confinement came to be viewed as the most appropriate means of treating, and protecting society from, men and women whose behaviors and personalities deviated from social norms. See, among other works, David J. Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic (Boston, 1971), and Gerald N. Grob, From Asylum to Community: Mental Health Policy in Modern America (New Jersey, 1991).
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