During the third presidential debate, John McCain said the community organizing group ACORN was "maybe perpetrating one of the greatest frauds in voter history in this country, maybe destroying the fabric of democracy."
ACORN became national news before the debate, following an Oct. 7 raid by state officials on the group's Nevada headquarters. Law enforcement officials confiscated several boxes of documents and eight computer hard drives in what ACORN spokesman Matthew Henderson called "a politically motivated stunt." Bob Walsh, a spokesman for the Nevada secretary of state's office, argues that the raids were necessary to "determine the extent of the fraud being committed." The group has drawn negative attention for turning in suspect voter registration forms in several states, and for reports of voters being harassed by ACORN workers to register several times over. On Oct. 9, CNN's Drew Griffin reported that a criminal investigation of ACORN in Nevada would not be complete until "weeks, maybe even months down the road, and of course, that's going to be after the election," suggesting that the 2008 election would be riddled with voter fraud.
The allegations against ACORN are part of a tangle of misinformation and insinuation that is being played out across the media, and within the Justice Department. ACORN, because of its advocacy on behalf of low-income and minority families, and its efforts to register voters in poor and minority districts, has become a focus for the right's racial anxieties. At best, ACORN gives the right a weapon against the Democratic presidential candidate; at worst, it allows the conservative media machine to cast doubt on the results of the election should Barack Obama win. Adding to the controversy over ACORN is the organization's own internal problems, some of which are quite serious.
But the furor over ACORN obscures the fundamental problems afflicting our election system, among them flawed databases that have disenfranchised thousands over typos and data entry errors, secretive voter purges that are conducted without oversight, and partisan attempts to disqualify the other side's likely voters. "We have a system that's prone to error and manipulation that locks out eligible voters, because political operatives are allowed to challenge or otherwise undermine eligible voters," says Wendy Weiser who directs the voting rights program at NYU's Brennan Center of Justice.
The Allegations Against ACORN
At National Review Online, writer Mark Steyn declared, "What does ACORN do? It steals elections." ACORN is actuallya community organizing and advocacy group whose affiliate, Project Vote, runs voter registration drives in mostly low-income and minority communities. The group also lobbies Congress for legislative action on behalf of those communities. The idea that ACORN "steals elections" via its voter registration efforts (or even has the capability to do so) has been aided by poor reporting on how groups who perform voter registration must legally operate, as well as through the conflation of registration fraud with voter fraud, a favorite tactic of the right.
In many of the states, such as Indiana and Nevada, where fraudulent voter registration forms have been turned in, local laws mandate that ACORN refrain from destroying completed forms, no matter how fraudulent they appear. As a result, ACORN turns in all forms, even in states where that isn't required, according to spokesman Brian Kittenring. ACORN says it labels problematic forms in order to help local election officials weed out bad forms.
This was the case in Nevada. Spokesman Walsh, said that while ACORN was cooperating, the raid on its headquarters was necessary. "We had reason to believe there was fraud occurring that was not being brought to our attention. Whether that was because ACORN simply missed it, or something more nefarious is part of the purpose of the investigation. Not knowing the extent of the alleged fraud, we felt the search warrant was the appropriate investigatory tool."
ACORN claims that it fires employees who consistently file fraudulent forms, but ACORN is compelled to turn forms in anyway. "We label and identify them with problematic card cover sheets. Our interpretation of the law is that we turn all of these in; it would be so much easier if we could just throw away Mickey Mouse," says Kittenring. In a Nevada affidavit ACORN claimed it was firing workers at a rate of 10 per week.
However, the larger issue is that there is scant evidence that registration fraud leads to voter fraud, although there is a history of Republicans attempting to use one to fuel fears of the other. Registration fraud refers to filling out a voter registration card with incorrect information. Voter fraud refers to the actual casting of fraudulent votes. The former rarely leads to the latter because of strict federal ID requirements for first-time voters mandated by the Help America Vote Act.
Republicans regularly cite registrations written in the name of celebrities or fictional characters to argue that ACORN is undermining the electoral process. "The only way Mickey Mouse could vote is if he shows up with a federally approved form of ID," says voting rights expert Weiser. "And if they wanted to affect the election, they'd have to have multiple addresses and do it an incredible amount of times."
Weiser adds, "It's an incredibly stupid way to commit fraud, and it's absolutely impossible to determine the result of the election that way."
That registration fraud is not the real threat was conceded by Walsh, "It's not our belief [that registration fraud leads to widespread voter fraud]. That's not to say we aren't cautious and mindful of that possibility."
The conflation of registration fraud with vote fraud is only the beginning of how the right is attacking ACORN. This election season, conservatives have developed a curious counter-narrative in which the sharpened fangs at America's throat are borne by racial minorities and the groups who advocate for them. In this retelling of recent history, ACORN is at once responsible for the economic crisis by advocating for banks to lend to minorities, responsible for John McCain losing the election by virtue of an elaborate vote fraud scheme, and a part of the radical leftist matrix that birthed presidential candidate Barack Obama.
At National Review, Stanely Kurtz wrote that "far more than we've recognized, ACORN's local, CRA-enabled pressure tactics served to entangle the financial system as a whole in the subprime mess." Conservatives argue that the Community Reinvestment Act, a 1970s-era law that was developed to prevent redlining and provide access to credit to low-income and minority communities is responsible for causing the credit crisis by "forcing" banks to make risky laws through federal regulation. Kurtz and others on the right maintain that ACORN, by advocating for fair housing laws, had a key role in exacerbating the credit crisis. But as American Progress Senior Fellow Robert Gordon wrote at TAP Online, only "one in four sub-prime loans were made by the institutions fully governed by CRA," and that most risky loans were offered by institutions not governed by federal regulation.
Conservatives have used ACORN's legal problems and mostly black membership to argue that the group's activities on behalf of minorities and low-income Americans are subversive. Rush Limbaugh concluded that "ACORN and Barack Obama [are] smack dab in the middle of it; they have been training young black kids to hate, hate, hate this country, and they trained their parents before that to hate, hate, hate this country. It was a movement."
The right's focus on ACORN is therefore seen by some voting rights advocates as a way to obscure real issues of voter disenfranchisement, chief among them purges of state voter rolls conducted in secret that may have disenfranchised thousands of voters. The New York Times reported that hundreds of thousands of voters were purged from rolls in Colorado, Indiana, Ohio, Michigan, Nevada, and North Carolina within 90 days of the presidential election, which is illegal. States use matching criteria, such as names, addresses, and social security numbers, to ferret out ineligible voters. But the process is vulnerable to data entry errors and even poor handwriting, as well as the simple fact that many Americans share similar names. A voter who shares a similar name to an ineligible voter could be erroneously identified by a computer as that voter. The criteria vary by state, but in one case in Florida in 2000, a Rev. William D. Whiting was misidentified as convicted felon Willie J. Whiting, because the system didn't account for middle names.
The rate of data-entry errors and mistakes due to poor handwriting varies, but the Social Security Administration database, which states often use, has an error rate of 28.5 percent, meaning that more than a quarter of the voters matched against it could be erroneously removed from the rolls. These are very large numbers in comparison to the handful of instances of voter fraud confirmed by prosecutions, and yet several states, including Florida, Iowa, Louisiana, and South Dakota, have instituted no-match-no-vote policies based on flawed databases and matching criteria.
"There is no question that the number of people voting wrongfully is infinitesimal compared to the hundreds of thousands being purged," Michael Waldman of the Brennan Center told a crowd of reporters at the Washington Press Club two weeks ago. Waldman subsequently added, "The level of disenfranchisement is greater than we have seen in previous federal elections. … It is fierce."
But disenfranchisement is not limited to purges. Partisan efforts to disenfranchise the other side's likely voters are occurring nationwide. In Ohio, Republicans are attempting to get their hands on a no-match list of 200,000 voters whose information did not match other state records, presumably for the purpose of challenging them at the polls. Ohio Secretary of State Jennifer Brunner argues that the mismatches are due to database errors, rather than fraudulent registrations. Brunner told The New York Times on Oct. 15 that "federal government red tape, misstated technical information or glitches in databases should not be the basis for voters having to cast provisional ballots." Brunner says the state will be notifying those voters who have been mismatched so they can correct their registration information. In Nevada, the local GOP attempted to prevent voters whose registrations were sent in on time from correcting errors on their applications.
In Indiana, the state GOP filed suit to prevent early voting centers from being set up in heavily African-American Lake County, arguing that the centers would increase the potential for voter fraud. A judge denied the GOP's request to shut down the early voting centers, but they have appealed the ruling. Indiana has one of the strictest voter ID laws in the country, voters must provide a government issued photo ID at the polls. Recently, Indiana's Secretary of State Todd Rokita, a Republican, announced he was requesting an investigation of ACORN, after the group turned in 1,400 bad registration applications. ACORN maintains that they flagged most of the forms they turned in as suspicious, and Indiana law requires third-party registration groups to turn in all the completed forms they receive. An AP report quoted Rokita at a Republican event last year suggesting that there was something suspicious about Democrats running up high margins among black voters. "How can that be? ... Ninety to ten. Who's the master and who's the slave in that relationship?"
In New Mexico, after erroneously claiming it had identified 28 voters registered by ACORN who had voted fraudulently in the June primary, the state GOP sent a private detective to the homes of at least two of these voters and demanded personal information. Guadeloupe Bojorquez was at work when her mother, Dora Escobedo, called distraught because a private investigator was asking to be let into their home so he could verify her citizenship and registration status. The investigator, Al Romero, was hired by a lawyer named Pat Rogers who was connected to the local Republican Party. Eventually Romero left, but Bojorquez says her mother was shaken by the incident. "About an hour later I left work and went over to her house, and she was still crying. She couldn't understand why she worked so hard to become a citizen to be able to vote, and then she was going through all of this," Bojorquez told the Prospect.
While voter-suppression efforts are often attributed to Republicans, Ohio's Secretary of State, Brunner, who accused the GOP of trying to disenfranchise voters whose names didn't match a database, attempted to reject absentee-ballot applications sent out by the McCain-Palin campaign on a technicality. The Supreme Court has rejected the GOP's demands that the GOP be given a copy of the mismatch list, ruling they had no legal standing to do so. Voting rights lawyer Daniel Tokaji, who filed an amicus brief on behalf of several civil-rights groups against the Ohio GOP's request, says, "There's no basis in law for requiring voters to reconfirm their eligibility because the database hasn't matched them."
Yet to be seen are the number of people who will be disenfranchised by partisan challenges at the polls on Election Day, on the basis of information gathered from these same voter databases. Speaking at a panel set up by the American Constitution Society, Kristen Clarke of the NAACP Legal Defense Fund expressed concern over these challenges, saying that "laws that permit challenges don't clarify the burden of proof on the challenger" but nevertheless result in voters being disqualified.
But all of these instances of voter suppression, and many more, from states ill-prepared to handle voter turnout to faulty or insufficient voting machines, have been obscured by the partisan conflict over ACORN and voter fraud.
A History of Partisan Conflict
In 2006, Tova Wang, now of the voter-advocacy organization Common Cause, was one of two consultants (the other, Job Serebrov, is a Republican) who completed a report on voter fraud and intimidation for the Election Assistance Commission. In a 2007 Washington Post op-ed Wang wrote that her original report found that while concerns about voter fraud had been greatly exaggerated, voter intimidation is "prevalent in a variety of forms." The commission kept the report under wraps for months, before releasing a version that excluded much of the discussion of voter intimidation.
Indeed, the U.S. attorney scandal that broke last year was largely the result of U.S. attorneys being fired for not pursuing politically motivated cases, among them alleged instances of voter fraud where the attorneys themselves claimed there wasn't enough evidence to make a compelling case. The scandal was one of many that eventually led to the ousting of then-Attorney General Alberto Gonzales. One of the targets was ACORN. In New Mexico, U.S. Attorney David Iglesias was fired after he failed to pursue several cases, including a case against ACORN and a local Democratic official, due to lack of evidence.
As Talking Points Memo reported in 2007, Missouri U.S. Attorney Todd Graves was replaced by Justice Department official Bradley Schlozman a month after he failed to bring charges against ACORN. Schlozman, who eventually left the Justice Department after admitting that he "noted the likely political leanings," of prospective hires, brought an indictment against ACORN workers in Missouri for registration fraud just five days before the 2006 Senate race.
Recently, news of an FBI investigation of ACORN was leaked to the press, prompting House Judiciary Chairman John Conyers to send an angry letter to Attorney General Michael Mukasey, noting that the Department of Justice's election crimes manual states that the department "must refrain from any conduct which has the possibility of affecting the election itself." Iglesias recently told Talking Points Memo he was "astounded" by the probe and called it "a scare tactic." As with the U.S. attorney scandal, the focus on voter fraud is a partisan pretext for establishing laws that make voting and registering to vote more difficult. "The rules of the elections become part of the battleground in our elections, instead of letting citizens choose the candidates," says voting expert Weiser.
Wang says that the efforts against ACORN this year are more pronounced than in 2004 and 2006, when the White House pressured U.S. attorneys to bring indictments of registration fraud against ACORN workers close to the midterm elections. "It's worse now; [Republicans] are calling ACORN a criminal enterprise. This is an organization that brings people into the process that would otherwise be marginalized from it." Except this year, the benefits of going after ACORN are magnified by its association with Barack Obama.
However there are some recent signs that the political interests of the Bush administration no longer drive the Justice Department's election-related work. "We're cautiously optimistic, but there's still a legacy of politicization that could affect their election monitoring efforts," says Weiser. Last week Bush asked the Justice Department to look into whether those 200,000 Ohio voters should have to reconfirm their registration before Election Day at the request of House Minority Leader John Boehner of Ohio. Daniel Tokaji argues that this is of a piece with the administration's "zealous prosecution of voter fraud, however implausible the claims may be. At the same time, the administration has largely overlooked the protection of voters' rights."
But despite Bush's request, the Justice Department declined to intervene in Ohio. It is reportedly also looking into the voter intimidation incidents in New Mexico.
Even so legal observer Dahlia Lithwick says the damage done to the Justice Department by the Bush administration is hard to overstate. "I think it's going to take years and years to restore the mandate of the civil rights-division [of the Justice Department] as preserving voter access."
ACORN's Internal Problems
While ACORN has previously been in Republican crosshairs, Obama's connections to the group have made it even more of a lightning rod. Neither camp has been entirely honest in making its case. In the last presidential debate, Obama maintained that his only connection to ACORN was that he represented the organization as a lawyer in a court case alongside the Justice Department. In fact, the Obama campaign paid ACORN affiliate Citizen's Services, Inc. $800,000 for get-out-the-vote efforts during the 2008 primary but not for registration, as conservatives have claimed. In addition, Obama's 1992 involvement with Project Vote occurred before the group came under the auspices of ACORN in 1994, according to Project Vote spokesperson Sarah Massey.
Nevertheless, ACORN is in many ways a troubled organization. Dale Rathke, the brother of the organization's founder, embezzled nearly $1 million dollars from ACORN between 1999 and 2000. The organization later tried to conceal the embezzlement from its donors. In addition, concerns of impropriety have risen over ACORN's stewardship of Project Vote, which is a federally tax exempt nonprofit and must be nonpartisan. The New York Times reported last week that the board of Project Vote was staffed entirely by members of ACORN, which is a nonprofit but is not tax exempt and therefore not subject to the same restrictions on political activity. ACORN also owes back taxes to several states and the IRS.
Recently the group overstated the number of new voters it has registered. ACORN first reported that it had registered 1.3 million new voters, but the exact number of new voters seems to have been 450,000, with close to 30 percent of the forms filed turning out to be faulty in some way, with many either being incomplete, duplicates, or having false names. As for the argument that ACORN is trying to swing the election through fraudulent forms, Brian Kettenring argues the organization is in fact, being victimized by employees who are being paid for not actually doing any work.
"The submission of bogus voter registrations is really workers ripping off their employer. … Registration fraud doesn't lead to [fraudulent] votes, so if one were trying to impact the outcome of the election, that would be an ineffective way to go about it."
Contrary to many reports, the group does not give employees bonuses for turning in extra registration forms.
This reconsideration of ACORN's culpability is making some inroads. A week after his original broadcast, CNN reporter Drew Griffin's tone on registration fraud and voter fraud had changed considerably. "One does lead -- or can lead to the other, but doesn't necessarily lead to the other. … Our research is showing this more looks like a fraud perpetrated on ACORN, who is paying these people to go out there and get these fake names and garbage registrations." The real victims of the fraud against ACORN may be the American voters, many of whom may be prevented from casting a ballot on Election Day, as a result of weak voter protections, partisan challenges, and a Justice Department whose civil-rights mandate comes second to serving the political interests of the Republican Party. If there is a "threat to the fabric of democracy," it is posed by the politicization of the election process.
Correction: A previous version stated that David Iglesias was a U.S. attorney in Nevada. He was instead based in New Mexico.