In a 2017 piece in The New York Times, voting expert Ari Berman wrote, “The Voting Rights Act of 1965 outlawed tactics that prevented blacks, Hispanics and other minority groups from voting. But for decades, Republicans have fought to circumvent the law by describing their proposed restrictions — requiring specific forms of identification to vote, preventing early voting, purging voting rolls — as colorblind security measures, even though there is little evidence of any individual voter fraud in the United States.”
How did that approach to denying Black voters their hard-fought rights get on Donald Trump’s radar screen? Berman had a plausible answer: Kris Kobach, the Kansas Secretary of State, who had been on a crusade to use the kind of fake voting fraud allegations that were pervasive in the South to justify measures that could be used to keep the wrong kind of people—Kobach is a Republican—from voting. Kobach was the force behind Arizona’s 2010 “show me your papers” law, which, among other things, required proof of citizenship in order to register to vote and strict voter ID requirements (We discussed that Arizona law as the origin story for one of this year’s voting rights cases on the Supreme Court calendar.) Kobach was also one of the primary drafters of Alabama’s HB56, the law my office successfully challenged in court. It too combined anti-immigrant measures with anti-voting measures.
You’re probably starting to sense the theme. False claims that noncitizen voting influences who wins our elections have been around for a long time. But in Donald Trump’s hands, it has morphed into something even Kobach may not have envisioned.
Another key player in Trump’s camp, his first Attorney General, Alabama Senator Jeff Sessions, distanced himself from HB56 when he was facing a confirmation battle in 2016, saying he had nothing to do with it—and that’s plausible, since it was a state law and he was a U.S. senator. But Sessions too perpetuated the false litany of voter fraud claims as an excuse for restrictive measures. Just ahead of the midterm elections in 2018, Sessions, who was still on Trump’s good side then, echoed the president’s fake claims. AL.com said that Trump and Sessions “issued strong warnings about the threat of voter fraud in Tuesday’s elections, echoing the president’s baseless claims that massive voter fraud marred his 2016 election and prompting accusations that his administration is trying to intimidate voters.”
One more data point about Sessions and Kobach. Kobach, who didn’t land a position in the first Trump administration, did take an appointment, the May after Trump first took office, as the vice chairman of Trump’s Advisory Commission on Election Integrity. The commission’s mandate was to look for “improper voter registrations and improper voting.” “Issues that Kobach,” Berman wrote, “with his high-profile efforts in Kansas, almost single-handedly put on the Trump administration’s radar.” Sessions was there too, as Attorney General. And he had some history with the issue as well.
As U.S. Attorney in the Southern District of Alabama (he was appointed by Reagan), Sessions “used his vast power as the chief federal prosecutor in the state to selectively open investigations into ‘voter fraud’ with a singular focus on African-American activists and civil rights workers. In subsequent testimony to Congress, Alabama State Senator Hank Sanders observed a discernible pattern that emerged from Sessions’ efforts — clear targeting of those communities where Blacks were gaining newfound political power. During his tenure as U.S. Attorney, Sessions called for the interrogation of hundreds of witnesses about their experiences voting, understandably frightening some who later vowed never to vote again after the experience.”
One of the hallmarks of Sessions’ tenure as U.S. Attorney in Mobile was a case he lost, a voting rights case. The Lawyers Committee for Civil Rights explained it like this: the case “involved baseless charges levied upon three prominent African-American activists for promoting voter engagement in poor parts of the state’s rural Black Belt.” A conservative federal district judge, Emmett Cox, dismissed 50 charges in Sessions’ case before it went to trial due to a lack of evidence to sustain the charges. A jury in Selma, Alabama, acquitted the three defendants on every remaining charge. But the prosecution still had a significant impact, making Black and elderly voters afraid to exercise their rights because they too might be caught up in whatever Sessions and his cronies had planned next. In 1985, when President Reagan nominated Sessions to be a federal judge, there was an outcry over his history and particularly the prosecution based on unsupported claims of voter fraud. Allegations of racism were raised by multiple witnesses, and the nomination was ultimately pulled. One of the Assistant United States Attorneys in Sessions’ office, Thomas Figures, said Sessions had repeatedly addressed him as “boy.” (Thomas Figures’ nephew, Rep SC ) Shomari Figures, represents Alabama’s second district. He’s fighting an uphill battle in the district, which was redrawn to be majority Republican, after Callais, but his fundraising has been strong.)
The use of fake claims of voter fraud to justify restrictive laws, like voter ID and proof of citizenship, that make it more difficult for eligible Americans to vote predates Donald Trump. But Trump has not hesitated to take advantage of our history of voter intimidation. The Election Integrity Commission Kobach was appointed to lead was forced to fold, just months into its work. The Brennan Center explained, “For years, claims of fraud have been used to justify unwarranted voting restrictions. There is strong reason to suspect this commission was not a legitimate attempt to study elections, but rather a tool for enabling voter suppression.”
The Commission didn’t find evidence of voter fraud to support its mission, but Kobach’s requests for sensitive voter data from all 50 states, including partial Social Security numbers, resulted in bipartisan pushback. More than a dozen states refused his requests, including deep red Mississippi, where Republican Secretary of State Delbert Hosemann said his response would be: “‘They can go jump in the Gulf of Mexico, and Mississippi is a great State to launch from.’ He cited the need to protect the privacy of state citizens ‘by conducting our own electoral processes.’”
The administration was more subtle in 2017, but even Republican officials saw the effort for what it was: an attempt to interfere with state administration of elections. Then, as now, the Trump Administration sought voter information it could use to challenge voters’ eligibility. “Challenge” is the key word here. It’s not essential to actually find ineligible people on the rolls, just to claim that you have. Look at Nevada, where an outrageous initial claim about thousands of noncitizens voting collapsed under challenge until the final number proved to be …. zero.
But the damage was done. The myth of massive noncitizen voting continues to circulate in the wake of the administration’s claims there and elsewhere. It’s not about actually finding voter fraud, and it never has been. It’s about making claims in advance of an election, like Sessions did in 2017, that are designed to intimidate, to prevent people who are entitled to from voting, and try to impact the outcome of the election with dirty tricks, including building a narrative to reject a big loss at the polls.
As Attorney General, Jeff Sessions called on his U.S. Attorneys to bring voter fraud cases. But they proved hard to find. That’s not surprising. In North Alabama, where Republicans always lodged claims that voter fraud was rampant, my George W. Bush predecessor as U.S. Attorney looked for cases for eight years but never found one to prosecute. During my tenure, we looked hard every time allegations were made, but agents never found evidence to back up the claims, and my Trump successors also came up empty-handed when it came to voting fraud cases. But during Sessions’ time in office, one of the North Carolina U.S. Attorneys did find some cases to bring. He rounded up about 20 people, all immigrants. One was a man from Italy who had passed the citizenship test but had not yet been sworn in. He voted, mistakenly thinking he was eligible. Others were permanent residents who were told by campaign workers or election volunteers they were eligible and didn’t know they were breaking the law when they voted. It wasn’t exactly a flood of criminal aliens trying to influence the outcome of our elections. In fact, it had no impact on outcomes at all, and the criminal justice system proved more than capable of finding and punishing them. Local news reported that “The five defendants who have been sentenced received minimal fines, misdemeanor convictions and no jail time.” That’s the horror Republicans claim justifies laws that will disenfranchise thousands of eligible American voters.
Now, with early voting in the midterm elections underway, everything old is new again. Federal prosecutors are announcing immigrant voter fraud cases. There have been arrests in California, where the LA Times reports that people are confused by the charges, like one family, where a relative said “the family was rushing to figure out what happened, including whether Muñoz [the individual who was arrested] could have been confused with younger relatives of the same name, including a U.S.-born son who is a registered voter.”
DOJ officials have been quick to defend these indictments, with Harmeet Dhillon, the Assistant Attorney General for the Civil Rights Division, tweeting “Oh look, noncitizens voting,” even though these are only charges, not convictions, and we all know how spotty DOJ’s record is in this regard. When you bring cases to execute a political agenda instead of based on the evidence and the law, a lot of them turn out to be meritless.
DOJ’s number two acknowledged that yesterday
Trent McCotter, the acting Deputy Attorney General, in a press conference announcing criminal charges against 28 lawful permanent residents in California accused of illegal voter registration or voting, conceded that the cases might not all hold up. “There may be some names on there who it turns out ultimately are citizens,” he said. “We’re not perfect.” But DOJ guidelines require prosecutors to believe there is sufficient evidence to obtain and sustain a conviction before obtaining an indictment. This DOJ seems more interested in making a pre-election splash and scaring off voters than it does in doing justice.
Do not let them make you afraid to vote. Vote proudly and fearlessly. Help friends and neighbors who need it exercise their rights, too. We must all do whatever it takes right now. Donald Trump and his buddies don’t get to decide who serves in Congress and other elected offices. We do. It’s up to us. They have tried this before, bringing baseless charges and making untrue claims right before an election to try and snatch victory from the proverbial jaws of defeat. Don’t believe the noise. And don’t let them intimidate you. We’ve got this.
