Fox Defends Texas' Voter ID Law With Fraud

››› ››› MATT GERTZ

Fox News and Fox Business have leaped to the defense of Texas' voter ID law after the Justice Department moved to prevent its implementation, saying that the legislation violated the Voting Rights Act. Fox's coverage has been filled with false and misleading claims.

To learn about how Fox similarly misled its audience after the Justice Department blocked South Carolina's voter ID law, click here.

Fox Suggested Voter ID Needed To Stop Voter Fraud...

"Straight News" Anchor Scott: "We Are Having A Problem With Voter Fraud." On the March 13 edition of Fox News' Happening Now, anchor Jon Scott suggested Texas' voter ID law is needed because "we are having a problem with voter fraud right now." [Fox News, Happening Now, 3/13/12]

... But Actual Instances Of Voter Fraud Are Few And "Scattered"

Supreme Court Plurality Actually Found Only "Scattered Instances Of In-Person Voting Fraud." The Supreme Court plurality in Crawford v. Marion County Election Board did not find widespread in-person voter fraud, the type of fraud that a requirement that voters show identification at their polling places is meant to address. Rather, it found only "scattered instances" of such fraud. From the plurality opinion in Crawford v. Marion County Election Board:

Judge Barker cited record evidence containing examples from California, Washington, Maryland, Wisconsin, Georgia, Illinois, Pennsylvania, Missouri, Miami, and St. Louis. The Brief of Amici Curiae Brenan Center for Justice et al. in Support of Petitioners addresses each of these examples of fraud. While the brief indicates that the record evidence of in-person fraud was overstated because much of the fraud was actually absentee ballot fraud or voter registration fraud, there remain scattered instances of in-person voter fraud. For example, after a hotly contested gubernatorial election in 2004, Washington conducted an investigation of voter fraud and uncovered 19 "ghost voters." Borders v. King Cty., No. 05-2-00027-3 (Super. Ct. Chelan Cty., Wash., June 6, 2005) (verbatim report of unpublished oral decision), 4 Election L. J. 418, 423 (2005). After a partial investigation of the ghost voting, one voter was confirmed to have committed in-person voting fraud. Le & Nicolosi, Dead Voted in Governor's Race, Seattle Post-Intelligencer, Jan. 7, 2005, p. A1. [U.S. Supreme Court, Crawford v. Marion County Election Board, 4/28/08]

Justice Department Report Shows Very Few Prosecutions For Illegally Casting Ballots. According to a report by the Public Integrity Section of the Justice Department, from October 2002 through September 2005, the Justice Department charged 95 people with "election fraud" and convicted 55. Among those, however, just 17 individuals were convicted for casting fraudulent ballots; cases against three other individuals accused of casting fraudulent votes were pending at the time of the report. In addition, the Justice Department convicted one election official of submitting fraudulent ballots and convicted five individuals of registration fraud, with cases against 12 individuals pending at the time of the report. Thirty-two individuals were convicted of other "election fraud" issues, including Republicans convicted of offenses arising from "a scheme to block the phone lines used by two Manchester [New Hampshire] organizations to arrange drives to the polls during the 2002 general election." In other words, many of these convictions were connected to voter suppression efforts, not voter fraud. Several other people listed in the report were convicted of vote-buying. [Department of Justice, accessed 3/13/12]

NYU's Brennan Center: Allegations Of Voter Fraud "Simply Do Not Pan Out" And Distract From "Real [Election] Problems That Need Real Solutions." From a 2007 report by The Brennan Center for Justice:

Perhaps because these stories are dramatic, voter fraud makes a popular scapegoat. In the aftermath of a close election, losing candidates are often quick to blame voter fraud for the results. Legislators cite voter fraud as justification for various new restrictions on the exercise of the franchise. And pundits trot out the same few anecdotes time and again as proof that a wave of fraud is imminent.

Allegations of widespread voter fraud, however, often prove greatly exaggerated. It is easy to grab headlines with a lurid claim ("Tens of thousands may be voting illegally!"); the follow-up -- when any exists -- is not usually deemed newsworthy. Yet on closer examination, many of the claims of voter fraud amount to a great deal of smoke without much fire. The allegations simply do not pan out.

These inflated claims are not harmless. Crying "wolf" when the allegations are unsubstantiated distracts attention from real problems that need real solutions. If we can move beyond the fixation on voter fraud, we will be able to focus on the real changes our elections need, from universal registration all the way down to sufficient parking at the poll site. Moreover, these claims of voter fraud are frequently used to justify policies that do not solve the alleged wrongs, but that could well disenfranchise legitimate voters. Overly restrictive identification requirements for voters at the polls -- which address a sort of voter fraud more rare than death by lightning -- is only the most prominent example. [Brennan Center for Justice, accessed 3/13/12]

For more on how voter fraud is "not overwhelming" see here, see here and see here.

Fox Pushed Fallacy That Photo ID Should Be Required To Vote Because It's Required For Other Purposes...

Scott: "So Why Is It OK To Require ID When Cashing A Check... But Not At The Polls?" Introducing a discussing of the Texas law during the March 13 edition of Fox News' Happening Now, anchor Jon Scott asked Andrew Napolitano, "So why is it OK to require ID when cashing a check or boarding a plane and not at the polls?" He later added, "I have an ID to drive, I have to show an ID to check into a hotel. Rich Lowry makes the point that you have to show an ID to get into the building that houses Eric Holder's Justice Department." [Fox News, Happening Now, 3/13/12]

The Five Hosts: You Need An ID to "Get Into P.G. Movies," Get Food Stamps, Get Medication. From the March 12 edition of The Five:

GREG GUTFELD: I think that if I got -- if I need an ID to get medication, which I do every day. Then you should have an ID to vote.

And they can't say it's poll tax, if it's -- I mean, if it's free. I understand if you got to pay for it. But if it's free, how is it a poll tax? No one has explained that to me.

DANA PERINO: And if people don't have an ID, then we should help them get an ID. But if -- the point of, I have to have an ID to get in any of the buildings around here.

GUTFELD: You need an ID to get into P.G. movies.

KIMBERLEY GUILFOYLE: Well, that's the point. You're going to have to an ID --

ERIC BOLLING: You have to have an ID to get food stamps and other benefits?

GUILFOYLE: Yes. [Fox News, The Five, 3/12/12, via Nexis]

Fox & Friends' Carlson: You Need ID To Buy Cigarettes, Alcohol, Sudafed, Rent Cars Or Hotel Rooms. On the March 13 edition of Fox & Friends, co-host Gretchen Carlson said:

[L]et's just take a look at a simple list of what we're required to show ID for in general society. To buy cigarettes and alcohol. To purchase an R-rated movie ticket. To even buy Sudafed now. To rent a car, to get a hotel room, and I could go on and on, Mr. Adams, even to get a beach pass in my community, you have to show several forms of ID. [Fox News, Fox & Friends, 3/13/12]

Ingraham: "Can't Get On A Plane Without An ID" Discussing the DOJ's action while guest-hosting the March 12 edition of The O'Reilly Factor, Laura Ingraham said: "Can't get on a plane. Can't get on a plane without an ID. Can't get on a plane, but you know, you can vote." [Fox News, The O'Reilly Factor, 3/12/12, via Nexis]

...But Election Experts Say That Such Analogies Are Invalid...

Loyola Associate Professor Levitt On Voting Analogy: "Drinking A Beer Is Very Nice," But "I Don't See That In The Constitution." From Loyola Law School Associate Professor Justin Levitt's September 8, 2011, testimony before a Senate subcommittee:

One word on airplanes -- Mr. von Spakovsky is fond of saying that you need photo ID to board a plane. I wish he'd add "and I'm George Clooney" because neither one is true. To get to you today, I had to board a plane from Los Angeles. I never showed photo ID. While waiting in the terminal, I drank a beer while waiting for the flight and quite enjoyed it. I never showed ID. To come testify before you today, I had to walk right in through this federal building and never showed ID. In fact, I haven't had photo ID in my wallet the entire week.

Airlines, restaurants, federal buildings have figured out ways of accommodating real American citizens without restricting them to single ID cards and as a fundamental constitutional right, so should all elections in the country. The airplane analogy is also beside the point. This is the last thing I'll mention. Voting is in two articles of the Constitution, in 10 amendments of the Constitution. It's featured at the very heart of our constitutional order.

Boarding a plane is nice. Drinking a beer is very nice. But outside of Prohibition, I don't see that in the Constitution. [Levitt testimony at a hearing before the Subcommittee on the Constitution, Civil Rights, and Human Rights, Senate Committee on the Judiciary, 9/8/11, via Nexis]

ACLU South Carolina Executive Director Middleton: "It's Not A Constitutional Right To Buy Sudafed Or Become A Frequent Flier." In October 2011, the William & Mary Election Law Society reported of an interview with ACLU South Carolina executive director Victoria Middleton:

Photo IDs are required for many activities these days, from boarding a plane to purchasing a six-pack of beer. When asked if it was unreasonable to ask an individual to present an ID to vote, Middleton said, "It's not a constitutional right to buy Sudafed or become a frequent flier." She continued, "People fought and died to win the right to vote." [William & Mary Election Law Society, 10/28/11]

... And Even Vote Fraudster J. Christian Adams Called The Analogy "Silly And Constitutionally Incorrect"

Adams: Arguments "Flimsy" Since "The 15th Amendment Is In Play When It Comes To Voting." In a piece attacking the DOJ's letter, J. Christian Adams wrote:

Finally, don't fall into the silly and constitutional incorrect argument that you have to show ID to cash a check and get on a plane. Flimsy arguments like that are what the left wants from you. The 15th Amendment is in play when it comes to voting. It prohibits racial discrimination in voting, and Section 5 of the Voting Rights Act is passed to enforce that part of the Constitution. Cashing a check isn't found in the Constitution, and people who love the Constitution shouldn't equate a plane trip with the right to vote free from racial discrimination. [, 12/24/11]

For information on Adams' constant attacks on the Obama DOJ and defenses of voter ID laws, see here and here.

Fox Promoted Falsehood That Supreme Court Precedent Invalidates DOJ's Ruling...

Dobbs Promotes Claim That Texas Voter ID Law Is "Based On The Indiana Law... Upheld By The Supreme Court." On the March 12 edition of Fox Business' Lou Dobbs Tonight, host Lou Dobbs said:

The powerful chairman of the House Judiciary Committee, Congressman Lamar Smith, reminded the president and his besieged attorney general that the Texas voter ID law is based on the Indiana law.

That the voter identification law was upheld by the U.S. Supreme Court just about four years ago. [Fox Business, Lou Dobbs Tonight, 3/12/12, via Nexis]

Fox Guest Sekulow: "Best Argument" For Texas Voter ID Law Is Supreme Court "Recently Said These Laws Are OK." During a March 13 appearance on America's Newsroom, Jordan Sekulow said:

In fact, the Supreme Court in an opinion written by former Justice -- probably one of the most liberal Supreme Court Justices in recent history, John Paul Stevens, they upheld a very similar law, almost the exact same law in Indiana in 2008, so not a long time ago, 6-3, with Justice Stevens writing the opinion. Now he's been replaced by Justice Kagan, but there's still five votes there on the court for these kind of laws. So I think that's the best argument right there, is the Supreme Court has recently said these laws are OK if you take the safeguards that Texas did. [Fox News, America's Newsroom, 3/13/12]

... But Supreme Court Case Did Not Address Whether Indiana Voter ID Law Violated Law DOJ Is Citing

Indiana Complaints Alleged That The New Law Violated The 14th Amendment. From the majority opinion in the Supreme Court case, Crawford v. Marion County Election Board:

Promptly after the enactment of SEA 483 in 2005, the Indiana Democratic Party and the Marion County Democratic Central Committee (Democrats) filed suit in the Federal District Court for the Southern District of Indiana against the state officials responsible for its enforcement, seeking a judgment declaring the Voter ID Law invalid and enjoining its enforcement. A second suit seeking the same relief was brought on behalf of two elected officials and several nonprofit organizations representing groups of elderly, disabled, poor, and minority voters. The cases were consolidated, and the State of Indiana intervened to defend the validity of the statute.

The complaints in the consolidated cases allege that the new law substantially burdens the right to vote in violation of the Fourteenth Amendment; that it is neither a necessary nor appropriate method of avoiding election fraud; and that it will arbitrarily disfranchise qualified voters who do not possess the required identification and will place an unjustified burden on those who cannot readily obtain such identification. Second Amended Complaint in No. 1: 05-CV-0634-SEB-VSS (SD Ind.), pp. 6-9 (hereinafter Second Amended Complaint). [U.S. Supreme Court, Crawford v. Marion County Election Board, 4/28/08]

DOJ Blocked Texas' Law Under Section 5 Of The Voting Rights Act. In his March 12 letter to the Texas Elections Division blocking the state's voter ID law, DOJ Assistant Attorney General Thomas Perez wrote:

Under Section 5 of the Voting Rights Act, the submitting authority has the burden of showing that a submitted change has neither a discriminatory purpose nor a discriminatory effect. Georgia v. United States, 411 U.S. 526 (1973); 28 C.F.R. 51.52. In light of the considerations discussed above, I cannot conclude that your burden has been sustained in this instance. Therefore, on behalf of the Attorney General, I must object to the changes affecting voting that are occasioned by Sections 9 and 14 of Chapter 123 (S.B. 14) (2011). [DOJ letter to Texas, 3/12/12]

Indiana Is Not A "Covered Jurisdiction" Under Section 5 Of The Voting Rights Act And Was Not Subject To Preclearance. According to the Department of Justice, neither the state of Indiana nor any county or township within is a "covered jurisdiction" under Section 5 of the Voting Rights Act, meaning that the state's laws are not subject to preclearance. [, accessed 3/13/12]

Posted In
Elections, Election Law, Voting Rights & Issues
Voter Fraud and Suppression
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