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How Kris Kobach’s Cabal Aims to Remake Election Law

A Case Study

Brentin Mock Jul 5, 2012

“Some 1,500 people voted under dead people’s and prisoners’ names from 2008-11, according to Michigan’s auditor general. Many might be clerical errors, but this illustrates the need to ensure accurate voter rolls.”

Michigan Secretary of State Ruth Johnson wrote this in a July 2 Times-Herald column, and she lied. 

Johnson is a member of a 15-state consortium of rightwing elections officials that’s hell-bent on purging voters. And her dishonest jousting in Michigan this week offers a window into how that consortium works—playing fast and loose with facts in order to create the impression of a problem that would justify their hardline solutions, and flouting the law themselves when necessary.

Johnson’s Monday column was a last-ditch effort to persuade Gov. Rick Snyder to sign into law her Secure and Fair Elections (SAFE) initiative, including the bills HB 5061 and SB 803, which respectively would force voters to reaffirm their citizenship before receiving a ballot and would require photo ID for absentee voting. Another bill, SB 754, would put onerous restrictions on third-party registration organizations, much like a Florida law that was recently blocked by a federal judge. On Tuesday, Gov. Snyder vetoed those three bills, but preserved the rest of Johnson’s SAFE package.

Despite Johnson’s constant refrain on dead people voting, her own Bureau of Elections has already established there was no actual voter fraud in the auditor general’s report she referenced in her July 2 column.

While it’s true that the auditor general initially found close to 1,500 cases in which a dead or imprisoned person appeared to vote, the Department of State’s Bureau of Elections (BOE) said the auditor general was mistaken on all 1,500 counts (pdf; page 17). The auditor general reports that BOE informed investigators “that in every instance where it appears a deceased person or incarcerated person voted and local records were available, a clerical error was established as the reason for the situation. In addition, the Department [BOE] informed [the auditor general] that in some cases, voters submitted absent voter ballots shortly before they died. The Department informed us that the examples provided did not result in a single verified case that an ineligible person voted.

Despite this, Johnson is determined to press forward with her original intentions. And regardless of Gov. Snyder’s veto of the citizenship re-affirmation bill, Johnson said she will require that ballot application forms have a citizenship checkbox anyway.

Johnson will also continue this work through here membership in the Interstate Cross Check Project. The architect of that consortium is Kansas Secretary of State Kris Kobach, who gained notoriety when he led a national movement to copycat Arizona’s immigrant profiling law. The consortium allows member states to share voter registration information in a database to find ineligible voters.

Kansas has the most restrictive, active photo voter ID law in the nation. That law, which is also called the Secure and Fair Elections (SAFE) Act, is the model for what Kobach would like to see happen around the country, where state cabinet officials are sent on missions looking for dead people, dogs and “illegals” attempting to vote. The project claims it has discovered people who are registered in multiple states, and who may have even voted in multiple states during one election.

“Double voting is a real common form of voter fraud,” Kobach told The Washington Times, despite every shred of evidence that exists establishing the opposite to be true. Kobach and his colleagues happily ignore the fact that a voter could be registered in one state, move to another state, and the prior state only fail to update its records in time; that doesn’t add up to “double voting.” But as the engineer of some of the most arcane anti-immigrant laws in the nation, it’s not a far leap to say Kobach’s Cross Check Project is fueled primarily by the desire to harass immigrants.

Despite Johnson’s buy-in to Kobach’s scheme, her efforts are frustrated by the fact that the purging powers she wants to carry out are not officially her bailiwick. Verifying voters’ records is normally the job of local election administrators, and it happens when people register to vote. Michigan’s elections board noted this when it told the auditor general, “the actual recording of voter history is legally a local, not State, responsibility.”

This is a problem that rightwing secretaries of state in places like Florida and Colorado are also running into: They can’t purge without the cooperation of their county elections supervisors, and for good reason. In Florida, county election supervisors were given a list of “non-citizens” to purge by the state, and the list was over 98 percent inaccurate, as found by University of Florida professor Daniel Smith.

Colorado is also pursuing a purging program. The Colorado scheme will sound depressingly familiar to those following voting rights this elections season: Secretary of State Scott Gessler started a program this year that matches voter registration information with Department of Motor Vehicle databases to see who used immigrant documents when applying for a drivers license and then registered to vote. Though Gessler acknowledges deep flaws in gathering conclusions based on this criteria, the state still came up with a list of roughly 11,000 names of people it claims are wrongly registered to vote, 106 of which are “non-citizens” who Gessler “is virtually certain … are improperly registered to vote.” This is the same story that unfolded in Florida, and is now being fought out in court.

Gessler of course can’t prove his assertion that the 106 registrations are improper, which is why he, like Florida Secretary of State Ken Detzner, is banging on DHS’s doors for access to their database tracking immigrants who receive public benefits, in hopes it will validate their premises. It won’t. Last year Gessler tried to block county clerks from mailing out ballots to residents who ended up on “inactive voter” lists because they missed one election—the 2010 election. Gessler picked this fight with clerks in Denver and Pueblo, both Democratic strongholds, prompting a judge to give both counties the right to mail out ballots. Republicans in the legislature intervened by introducing a bill that would have switched all “inactive” voters to active, at the request of local election clerks who said this would make their jobs easier, but Gessler testified against it, and it was voted down.

So Gessler, like Florida’s Detzner, doesn’t get along with his own county election administrators, but he’s invested in Kobach’s Cross Check Project to find other creative ways to purge and block voter participation under phony fraud claims. Gessler asserted in January that by using the consortium’s cross-check he found six people who voted in both his state and Kobach’s Kansas. “Sounds like a few people moved to a neighboring state and forgot to change their address. This is not grounds for disenfranchising thousands of Colorado voters,” Democratic consultant Laura Chapin responded to The Denver Post. The FBI is still investigating Gessler’s claims.

It’s difficult to assess Kobach’s Cross Check Project operations or efficacy because it doesn’t even have a website. But if the reports are true then there are 15 states—Michigan, Kansas, Arizona, Arkansas, Colorado, Illinois, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, Oklahoma, South Dakota and Tennessee—inside Kobach’s web, representing 132 electoral college votes. Six more states were waiting in the wings as of reports in May.

This week, Michigan Gov. Snyder blocked the Kobach wave in his state, disregarding the voter fraud lies of his secretary of state. But will the other governors do the same?

This article was originally published by Colorlines.

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