Status Report - EAC Voting Fraud-Voter Intimidation Research - May 17, 2006

although it may create the perception that vote fraud is possible. Those who
believe there is more polling place fraud than reported/investigated/prosecuted
believe that registration fraud does lead to fraudulent votes. Jason Torchinsky
from the American Center for Voting Rights is the only interviewee who believes

that polling place fraud is widespread and among the most significant problems in
the system.

Abuse of challenger laws and abusive challengers seem to be the biggest
intimidation/suppression concerns, and many of those interviewed assert that the
new identification requirements are the modern version of voter intimidation and
suppression. However there is evidence of some continued outright intimidation
and suppression, especially in some Native American communities. A number of
people also raise the problem of poll workers engaging in harassment of minority
voters. Other activities commonly raised were the issue of polling places being
moved at the last moment, unequal distribution of voting machines, videotaping
of voters at the polls, and targeted misinformation campaigns.

Several people indicate that, for various reasons, DOJ is bringing fewer voter
intimidation and suppression cases now, and has increased its focus on matters
such as noncitizen voting, double voting, and felon voting. Interviews with DOJ
personnel indicate that the Voting Section, Civil Rights Division, focuses on
systemic patterns of malfeasance in this area. While the Election Crimes Branch,
Public Integrity Section, continues to maintain an aggressive pursuit of systematic
schemes to corrupt the electoral process (including voter suppression), it also has
increased prosecutions of individual instances of felon, alien, and double voting.

The problem of badly kept voter registration lists, with both ineligible voters
remaining on the rolls and eligible voters being taken off, remains a common
concern. A few people are also troubled by voters being on registration lists in
two states. They said that there was no evidence that this had led to double voting,
but it opens the door to the possibility. There is great hope that full
implementation of the new requirements of HAVA — done well, a major caveat —
will reduce this problem dramatically.

Common Recommendations:

* Many of those interviewed recommend better poll worker training as the best way
to improve the process; a few also recommended longer voting times or voting on
days other than election day (such as weekends) but fewer polling places so only
the best poll workers would be employed.

Many interviewed support stronger criminal laws and increased enforcement of
existing laws with respect to both fraud and intimidation. Advocates from across
the spectrum expressed frustration with the failure of the Department of Justice to
pursue complaints.

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Status Report - EAC Voting Fraud-Voter Intimidation Research - May 17, 2006

As usual, there were a disproportionate number of such articles coming out of Florida.
Notably, there were three articles out of Oregon, which has one hundred percent vote-by-
mail.

Vote Buying

There were a surprising number of articles about vote buying cases. A few of these
instances involved long-time investigations concentrated in three states (Illinois,
Kentucky, and West Virginia). There were more official investigations, indictments and
convictions/pleas in this area.

Deceptive Practices

In 2004 there were numerous reports of intentional disinformation about voting eligibility
and the voting process meant to confuse voters about their rights and when and where to
vote. Misinformation came in the form of flyers, phone calls, letters, and even people
going door to door. Many of the efforts were reportedly targeted at minority
communities. A disproportionate number of them came from key battleground states,
particularly Florida, Ohio, and Pennsylvania. From the news reports found, only one of
these instances was officially investigated, the case in Oregon involving the destruction
of completed voter registration applications. There were no reports of prosecutions or
any other legal proceeding.

Non-citizen Voting

There were surprisingly few articles regarding noncitizen registration and voting — just
seven all together, in seven different states across the country. They were also evenly
split between allegations of noncitizens registering and noncitizens voting. In one case,
charges were filed against ten individuals. In another case, a judge in a civil suit found
there was illegal noncitizen voting. Three instances prompted official investigations.
Two cases, from this Nexis search, remained just allegations of noncitizen voting.

Felon Voting

Although there were only thirteen cases of felon voting, some of them involved large
numbers of voters. Most notably, of course, are the cases that came to light in the
Washington gubernatorial election contest (see Washington summary) and in Wisconsin
(see Wisconsin summary). In several states, the main problem was the large number of
ineligible felons that remained on the voting list.

Election Official Fraud
In most of the cases in which fraud by elections officials is suspected or alleged, it is
difficult to determine whether it is incompetence or a crime. There are several cases of

ballots gone missing, ballots unaccounted for and ballots ending up in a worker’s
possession. In two cases workers were said to have changed peoples’ votes. The one

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* A few recommend returning to allowing use of absentee ballots “for cause” only
if it were politically feasible.

¢ A few recommend enacting a national identification card, including Pat Rogers,
an attorney in New Mexico, and Jason Torchinsky from ACVR, who advocates
the proposal in the Carter-Baker Commission Report.

* Accouple of interviewees indicated the need for clear standards for the distribution
of voting machines

NEWS ARTICLES

Consultants conducted a Nexis search of related news articles published between January
1, 2001 and January 1, 2006. A systematic, numerical analysis of the data collected
during this review is currently being prepared. What follows is an overview of these
articles provided by the consultants.

Absentee Ballots
According to press reports, absentee ballots are abused in a variety of ways:

¢ Campaign workers, candidates and others coerce the voting choices of vulnerable
populations, usually elderly voters.

© Workers for groups and individuals have attempted to vote absentee in the names
of the deceased.

¢ Workers for groups, campaign workers and individuals have attempted to forge
the names of other voters on absentec ballot requests and absentee ballots and
thus vote multiple times.

It is unclear how often actual convictions result from these activities (a handful of articles
indicate convictions and guilty pleas), but this is an area in which there have been a
substantial number of official investigations and actual charges filed, according to news
reports where such information is available. A few of the allegations became part of civil
court proceedings contesting the outcome of the election.

While absentee fraud allegations turn up throughout the country, a few states have had
several such cases. Especially of note are Indiana, New Jersey, South Dakota, and most

particularly, Texas. Interestingly, there were no articles regarding Oregon, where the
entire system is vote by mail.

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Status Report - EAC Voting Fraud-Voter Intimidation Research - May 17, 2006

o With respect to DOJ’s Voting Section, Civil Rights Division, John Tanner
indicated that fewer cases are being brought because fewer are warranted ~ it
has become increasingly difficult to know when allegations of intimidation
and suppression are credible since it depends on one’s definition of
intimidation, and because both parties are doing it. Moreover prior
enforcement of the laws has now changed the entire landscape — race based
problems are rare now. Although challenges based on race and unequal
implementation of identification rules would be actionable, Mr. Tanner was
unaware of such situations actually occurring and his office has not pursued
any such cases.

o Craig Donsanto of DOJ’s Election Crimes Branch, Public Integrity Section,
says that while the number of election fraud related complaints have not gone
up since 2002, nor has the proportion of legitimate to illegitimate claims of
fraud, the number of cases DOJ is investigating and the number of indictments
his office is pursuing are both up dramatically. Since 2002, in addition to
pursuing systematic election corruption schemes, DOJ has brought more cases
against alien voters, felon voters and double voters than ever before. Mr.
Donsanto would like more resources so that his agency can do more and
would like to have laws that make it easier for the federal government to
assume jurisdiction over voter fraud cases.

A couple of interviewees recommend a new law that would make it easier to
criminally prosecute people for intimidation even when there is not racial animus.

Several advocate expanded monitoring of the polls, including some associated
with the Department of Justice.

Almost everyone hopes that administrators will maximize the potential of
statewide voter registration databases to prevent fraud.

Challenge laws, both with respect to pre-election day challenges and challengers
at the polls, need to be revised by all states to ensure they are not used for
purposes of wrongful disenfranchisement and harassment.

Several people advocate passage of Senator Barak Obama’s “deceptive practices”
bill.

There is a split on whether it would be helpful to have nonpartisan election
officials — some indicated they thought even if elections officials are elected as
non partisan officials, they will carry out their duties in biased ways nonetheless.
However, most agree that elections officials pursuing partisan agendas are a
problem that must be addressed in some fashion. Suggestions included moving
election responsibilities out of the secretary of states’ office; increasing
transparency in the process; and enacting conflict of interest rules.

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Status Report - EAC Voting Fraud-Voter Intimidation Research - May 17, 2006

¢ Poll watchers harassing voters;

¢ Poll workers being hostile to or aggressively challenging voters;
* Disproportionate police presence;

* Poll watchers wearing clothes with messages that seemed intended to intimidate;
and.

* Insufficient voting machines and unmanageably long lines.

Although the incidents reported on occurred everywhere, not surprisingly, many came

from “battleground” states. There were several such reports out of Florida, Ohio, and
Pennsylvania.

“Dead Voters and Multiple Voting”

There were a high number of articles about people voting in the names of the dead and
voting more than once. Many of these articles were marked by allegations of big
numbers of people committing these frauds, and relatively few of these allegations
turning out to be accurate according to investigations by the newspapers themselves,
elections officials, and criminal investigators. Often the problem turned out to be a result
of administrative error, poll workers mis-marking voter lists, a flawed registration list
and/or errors made in the attempt to match names of voters on the list with the names of
the people who voted. In a good number of cases, there were allegations that charges of

double voting by political leaders were an effort to scare people away from the voting
process.

Nonetheless there were a few cases of people actually being charged and/or convicted for
these kinds of activities. Most of the cases involved a person voting both by absentee
ballot and in person. A few instances involved people voting both during early voting
and on Election Day, which calls into question the proper marking and maintenance of
the voting lists. In many instances, the person charged claimed not to have voted twice
on purpose. A very small handful of cases involved a voter voting in more than one
county and there was one substantiated case involving a person voting in more than one
State, Other instances in which such efforts were alleged were disproved by officials.

In the case of voting in the name of a dead person, the problem lay in the voter
registration list not being properly maintained, i.e. the person was still on the registration
list as eligible to vote, and a person took criminal advantage of that. In total, the San
Francisco Chronicle found five such cases in March 2004; the AP cited a newspaper
analysis of five such persons in an Indiana primary in May 2004; and a senate committee
found two people to have voted in the names of the dead in 2005.

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U.S. ELECTION ASSISTANCE COMMISSION

Status Report on the
Voting Fraud-Voter Intimidation Research
Project

May 17, 2006



Status Report - EAC Voting Fraud-Voter Intimidation Research - May 17, 2006

Attachment A

Voting Fraud-Voter Intimidation Project Working Group

The Honorable Todd Rokita
Indiana Secretary of State
Member, EAC Standards Board and the Executive Board of the Standards Board

Kathy Rogers

Georgia Director of Elections, Office of the Secretary of State
Member, EAC Standards Board

J.R. Perez
Guadalupe County Elections Administrator, TX

Barbara Arnwine

Executive Director, Lawyers Committee for Civil Rights Under Law
Leader of Election Protection Coalition

(To be represented at May 18, 2006 meeting by Jon M. Greenbaum, Director of the
Voting Rights Project for the Lawyers Committee for Civil Rights Under Law)

Robert Bauer
Chair of the Political Law Practice at the law firm of Perkins Coie, DC
National Counsel for Voter Protection, Democratic National Committee

Benjamin L. Ginsberg
Partner, Patton Boggs LLP

Counsel to national Republican campaign committees and Republican candidates

Mark (Thor) Hearne II
Partner-Member, Lathrop & Gage, St Louis, MO
National Counsel to the American Center for Voting Rights

Barry Weinberg

Former Deputy Chief and Acting Chief, Voting Section, Civil Rights Division, U.S.

Department of Justice
EAC Invited Technical Advisor:

Craig Donsanto
Director, Election Crimes Branch, U.S. Department of Justice

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Status Report - EAC Voting Fraud-Voter Intimidation Research - May 17, 2006

instance in which widespread ballot box stuffing by elections workers was alleged was in
Washington State. The judge in the civil trial of that election contest did not find that
elections workers had committed fraud. Four of the cases are from Texas.

Recommendation

The consultants recommend that subsequent EAC research should include a Nexis search
that specifically attempts to follow up on the cases for which no resolution is evident
from this particular initial search.

CASE LAW RESEARCH

After reviewing over 40,000 cases from 2000 to the present, the majority of which came
from appeals courts, the consultants found comparatively few applicable to this study. Of
those that were applicable, the consultants found that no apparent thematic pattern
emerges. However, it appears to them that the greatest areas of fraud and intimidation
have shifted from past patterns of stealing votes to present problems with voter
registration, voter identification, the proper delivery and counting of absentee and
overseas ballots, provisional voting, vote buying, and challenges to felon eligibility.

Recommendation

Because so few cases provided a picture of these current problems, consultants suggest
that subsequent EAC research include a review of state trial-level decisions.

PROJECT WORKING GROUP

Consultants and EAC worked together to select members for the Voting Fraud-Voter
Intimidation Working Group that included election officials and representatives of
advocacy groups and the legal community who have an interest and expertise in the
subject matter. (See Attachment A for a list of members.) The working group is
scheduled to convene at EAC offices on May 18, 2006 to consider the results of the
preliminary research and to offer ideas for future EAC activities concerning this subject.

FINAL REPORT

After convening the project working group, the consultants will draft a final report
summatizing the results of their research and the working group deliberations. This
report will include recommendations for future EAC research related to this subject
matter. The draft report will be reviewed by EAC and, after obtaining any clarifications
or corrections deemed necessary, will be made available to the EAC Standards Board and
EAC Board of Advisors for review and comment. Following this, a final report will be
prepared.

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Status Report - EAC Voting Fraud-Voter Intimidation Research - May 17, 2006

Voter Registration Fraud

According to press reports, the following types of allegations of voter registration fraud
are most common:

¢ Registering in the name of dead people;
e Fake names and other information on voter registration forms;
© Illegitimate addresses used on voter registration forms;

* Voters being tricked into registering for a particular party under false pretenses;
and

¢ Destruction of voter registration forms depending on the party the voter registered
with.

There was only one self evident instance of a noncitizen registering to vote. Many of the
instances reported included official investigations and charges filed, but few actual
convictions, at least from the news reporting. There have been multiple reports of
registration fraud in California, Colorado, Florida, Missouri, New York, North Carolina,
Ohio, South Dakota, and Wisconsin.

Voter Intimidation and Suppression

This is the area which had the most articles, in part because there were so many
allegations of intimidation and suppression during the 2004 election. Most of these

remained allegations and no criminal investigation or prosecution ensued. Some of the
cases did end up in civil litigation.

This is not to say that these alleged activities were confined to 2004 — there were several
allegations made during every year studied.’ Most notable were the high number of

allegations of voter intimidation and harassment teported during the 2003 Philadelphia
mayoral race.

A very high number of the articles were about the issue of challenges to voters’
registration status and challengers at the polling places. There were many allegations that

planned challenge activities were targeted at minority communities. Some of the
challenges were concentrated in immigrant communities.

However, the tactics alleged varied greatly. The types of activities discussed also include
the following:

© Photographing or videotaping voters coming out of polling places;

¢ Improper demands for identification;

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Status Report - EAC Voting Fraud-Voter Intimidation Research - May 17, 2006

¢ There is substantial concern across the board about absentee balloting and the
opportunity it presents for fraud.

¢ Federal law governing election fraud and intimidation is varied and complex and
yet may nonetheless be insufficient or subject to too many limitations to be as
effective as it might be.

* Deceptive practices, e.g. targeted flyers and phone calls providing
misinformation, were a major problem in 2004.

Voter intimidation continues to be focused on minority communities, although the
American Center for Voting Rights uniquely alleges it is focused on Republicans.

Recommendations

The consultants recommend that subsequent EAC research include a follow up study of
allegations made in reports, books and newspaper articles. They also suggest that the
research should focus on filling the gap between the lack of reports based on methodical
studies by social or political scientists and the numerous, but less scientific, reports
published by advocacy groups.

INTERVIEWS

The consultants jointly selected experts from the public and private sector for interviews.
The consultants’ analysis of their discussions with these members of the legal, election
official, advocacy, and academic communities follows.

Common Themes

¢ There is virtually universal agreement that absentee ballot fraud is the biggest
problem, with vote buying and registration fraud coming in after that. The vote
buying often comes in the form of payment for absentee ballots, although not
always. Some absentee ballot fraud is part of an organized effort; some is by
individuals, who sometimes are not even aware that what they are doing is illegal.
Voter registration fraud seems to take the form of people signing up with false
names. Registration fraud seems to be most common where people doing the
registration were paid by the signature.

¢ There is widespread but not unanimous agreement that there is little polling place
fraud, or at least much less than is claimed, including voter impersonation, “dead”
Voters, noncitizen voting and felon voters. Those few who believe it occurs often
enough to be a concern say that it is impossible to show the extent to which it
happens, but do point to instances in the press of such incidents. Most people
believe that false registration forms have not resulted in polling place fraud,

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Status Report - EAC Voting Fraud-Voter Intimidation Research - May 17, 2006

DEFINITION OF ELECTION FRAUD

The consultants drafted a definition of election fraud that includes numerous aspects of
Voting fraud (including voter intimidation, which is considered a subset of voting fraud)
and voter registration fraud, but excludes campaign finance violations and election
administration mistakes. This draft will be discussed and probably refined by the project
working group, which is scheduled to convene on May 18, 2006.

LITERATURE REVIEW

The consultants found many reports and books that describe anecdotes and draw broad
conclusions from a large array of incidents. They found little research that is truly
systematic or scientific. The most systematic look at fraud appears to be the report
written by Lori Minnite, entitled “Securing the Vote: An Analysis of Election Fraud”,
The most systematic look at voter intimidation appears to be the report by Laughlin
McDonald, entitled “The New Poll Tax”. The consultants found that books written about
this subject all seem to have a political bias and a pre-existing agenda that makes them
somewhat less valuable.

Moreover, the consultants found that reports and books make allegations but, perhaps by
their nature, have little follow up: As a result, it is difficult to know when something has
remained in the stage of being an allegation and gone no further, or progressed to the
point of being investigated or prosecuted or in any other way proven to be valid by an
independent, neutral entity. This is true, for example, with respect to allegations of voter
intimidation by civil rights organizations, and, with respect to fraud, John Fund’s
frequently cited book, “Stealing Elections”.

Consultants found that researchers agree that measuring something like the incidence of
fraud and intimidation in a scientifically legitimate way is extremely difficult from a
methodological perspective and would Tequire resources beyond the means of most social
and political scientists. As a result, there is much more written on this topic by advocacy
groups than social scientists.

Other items of note:

e There is as much evidence, and as much concern, about structural forms of
disenfranchisement as about intentional abuse of the system. These include felon
disenfranchisement, poor maintenance of databases and identification
requirements.

© There is tremendous disagreement about the extent to which polling place fraud,
e.g. double voting, intentional felon voting, noncitizen voting, is a serious
problem. On balance, more researchers find it to be less of a problem than is
commonly described in the political debate; but some reports say it is a major
problem, albeit hard to identify.

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Status Report - EAC Voting Fraud-Voter Intimidation Research - May 17, 2006

INTRODUCTION

Section 241 of the Help America Vote Act of 2002 (HAVA) requires EAC to conduct

research on election administration issues. Among the tasks listed in the statute is the
development of:

* nationwide statistics and methods of identifying, deterring, and investigating
voting fraud in elections for Federal office [section 241(b)(6)]; and

© ways of identifying, deterring, and investigating methods of voter intimidation
[section 241(b)(7)].

BACs Board of Advisors recommended that the agency make research on these matters a
high priority.

FOCUS OF CURRENT RESEARCH

In September 2005, the Commission hired two consultants with expertise in this subject
matter, Job Serebrov and Tova Wang, to:

¢ develop a comprehensive description of what constitutes voting fraud and voter
intimidation in the context of Federal elections;

¢ perform background research (including Federal and State administrative and case
law review), identify current activities of key government agencies, civic and
advocacy organizations regarding these topics, and deliver a summary of this
research and all source documentation;

establish a project working group, in consultation with EAC, composed of key
individuals and representatives of organizations knowledgeable about the topics
of voting fraud and voter intimidation;

* provide the description of what constitutes voting fraud and voter intimidation
and the results of the preliminary research to the working group, and convene the

working group to discuss potential avenues for future EAC research on this topic;
and

* produce a report to EAC summarizing the findings of the preliminary research
effort and working group deliberations that includes recommendations for future
research, if any;

As of the date of this report, the consultants have drafted a definition of election fraud,
reviewed relevant literature and reports, interviewed persons from government and
private sectors with subject matter expertise, analyzed news reports of alleged election
fraud, reviewed case law, and established a project working group.

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