Crossposted from the Election Law Blog.  Here is a guest post from Karyn Rotker, Senior Staff Attorney, ACLU of Wisconsin (lead counsel in Frank v Walker).  It responds to an RNLA post on voter fraud in Wisconsin, and more broadly on my response to the RNLA on whether fear of impersonation fraud justifies voter id laws

It’s 2014, not 2004.

But you wouldn’t know that as, once again,  voter ID advocates are trotting out a police report issued about the 2004  elections to support their arguments – soundly debunked by a federal judge in Wisconsin last  week – that voter ID is needed to prevent alleged voter fraud.[1]

The post neglects to mention that Judge Adelman found, based on the evidence presented at trial,  that the kind of voter fraud that voter ID would prevent simply has not occurred in Wisconsin.  As Judge Adelman also found, but the post neglects to mention, such fraud is not impossible to detect[2] and would be difficult to commit. [3]

Yet partisans continue to cling to this report, written by a unit of the Milwaukee Police Department about a decade-old election, as evidence of fraud that, they argue, somehow necessitates voter ID. They don’t mention that even though Wisconsin’s 2004 elections were  extensively investigated by federal, state and local law enforcement officials, they resulted in only a handful of prosecutions for alleged fraud – none of which involved impersonation and most of which the government lost because it couldn’t prove that fraud had, in fact, occurred.[4]

They don’t mention that the report was unsigned, written only by a sub-unit of the police department, came up with its recommendations through a process of “group speak” by police officers with no background or expertise in election administration, was issued outside normal department channels, and was explicitly disclaimed by every other entity that had participated in the investigation[5] as well as by the leadership of the police department itself. They claim that the report was “non-partisan” – but don’t mention that one of its main authors, who paid out of his own pocket to print the report and personally distributed it to political parties, subsequently retired and joined the executive committee of the Republican Party of Wisconsin.

Also omitted from the post is the other side of the ledger: indisputably lawful voters burdened or prevented from voting by voter ID.  As Judge Adelman found, about 300,000 Wisconsin voters don’t have ID – and that those voters are often poor and uneducated, may be homeless, and are disproportionately African-American and Latino.  The state itself admitted to racial disparities in ID possession.  And these stark realities come as no surprise: as the testimony at trial – most of it undisputed – showed, on measures of income and poverty and joblessness and housing segregation, African-Americans and Latinos in metropolitan Milwaukee lag far behind whites, with disparities among the worst in the United States. That legacy, and continuing patterns of discrimination in housing, employment, and education, means that voters remain separate and unequal today.

The Judge also recognized not all voters have or need ID. Many – including multiple voters who testified at tried – have lived perfectly well for years, or even their whole lives, without ID. Many voters don’t drive, don’t fly on airplanes, don’t leave the country, and don’t cash checks (or find local merchants willing to cash checks without ID). The Judge found, after listening to two weeks of trial testimony, that getting to DMV during the weekday, daytime hours its offices are open, for voters without transportation or paid time off from work, is itself a difficult process; that many voters without ID also lack documents like birth certificates and social security cards that DMV demands before it will issue ID; and that getting those documents often requires ID, time, and money that many voters simply do not have.  These burdens are so pervasive that many of the state’s own witnesses admitted to them.

The post also repeats apocryphal claims of “Chicago” (read: black) voters traveling to Milwaukee to unlawfully vote. No evidence of such voters was produced at trial. It argues that campaign workers (wrongly) voted in Wisconsin – but neglects to mention that the report did not link that issue to ID but to the fact that in 2004 a voter only had to live in Wisconsin 10 days to be considered eligible to vote here;[6]   in 2011 Wisconsin law was changed to require 28 days’ residence.

As Judge Adelman recognized, years of searching haven’t produced a shred of evidence of any organized effort to violate Wisconsin’s election laws and or of prosecution of any Wisconsin resident for in-person voter impersonation – the only kind of illegal voting behavior that voter ID can prevent. As he also found, photo ID laws “have no effect on confidence or trust in the electoral process [because . . .] such laws undermine the public’s confidence in the electoral process as much as they promote it . . . . [T]he publicity surrounding photo ID legislation creates the false perception that voter-impersonation fraud is widespread, thereby needlessly undermining the public’s confidence in the electoral process.”

Yet some remain willing to take away the votes of tens or hundreds of thousands of other voters for whom getting ID is a real cost, an actual burden. A commitment to the individual dignity of each and every one of those voters demands that unneeded voter ID requirements not be used to cancel out the votes of these lawful, legitimate, Wisconsin voters.

[2] Frank v. Walker at 15 (emphasis added): “When Michael Sandvick, a former Milwaukee police officer [and one of the authors of the report cited in the post], was asked at trial whether or not voter fraud was difficult to detect, he answered, ‘There are different types of voter fraud. Some of them are hard to detect and some of them are not.’ . . . When asked what types are hard to detect, he gave only one example: someone using a fake address to vote. He did not mention voter impersonation.” Note, however, that the Wisconsin voter ID law does not require the ID to have the voter’s address.

[3]Id at 17: “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 (or one fewer vote for an opposing candidate), a vote which is unlikely to change the election’s outcome.

Adding to the cost is the fact that, contrary to the defendants’ rhetoric, voter-impersonation fraud is not ‘easy’ to commit. To commit voter impersonation fraud, 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.”

[4] (“In Wisconsin, where prosecutors have lost almost twice as many cases as they won, charges were brought against voters who filled out more than one registration form and felons seemingly unaware that they were barred from voting. . . . Of the hundreds of people initially suspected of violations in Milwaukee, 14 — most black, poor, Democratic and first-time voters — ever faced federal charges. . . . . Even the 14 proved frustrating for the Justice Department. It won five cases in court.”) And while the post raises alleged double voting as a problem, the evidence the state itself produced at trial showed that a number of double voters indisputably had ID – using their drivers’ licenses to register when they double voted.

[5]Report at p. 2 (emphases added):



When the task force was formed, the United States Attorney’s Office and Federal Bureau of Investigation limited their participation to the investigation of potential criminal violations. These agencies indicated that they would not be involved in any general evaluation of election procedures. As such, the recommendations and findings in this report are those of the Special Investigations Unit of the Milwaukee Police Department and do not reflect the views of the United States Department of Justice, the United States Attorney’s Office, the Federal Bureau of Investigation, or any other member of the task force.

In 2004 the Milwaukee County District Attorney’s Office, at the direction of District Attorney E. Michael McCann, participated with federal authorities and the Milwaukee Police Force in a Joint Task Force investigating possible voter fraud. Today’s Report is issued by the Milwaukee Police Department’s Special Investigations Unit, and contains that unit’s investigative findings, opinions and recommendations, especially relating to the management of elections within the City of Milwaukee. The findings, opinions and recommendations expressed in this Report will be closely considered by District Attorney John Chisholm as relevant to the investigation of future allegations of election related misconduct, but this office did not participate in the preparation of the report and is not endorsing the findings, opinions or recommendations of the report at this time.

[6]Report at p 53: “The investigators fear that the lack of enforcement in regard to the residency statutes will result in a new class of Wisconsin voter, the ’10-Day Resident.’”