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Response to National Review article on voter fraud, and look at PILF

Hans A. von Spakovsky and John Fund have written another article about voter fraud, this time featured in National Review [1]. Previously, they had written an opinion piece published in the Wall Street Journal [2], claiming there is a large amount of voter fraud. MediaMatters has an adequate response to the WSJ article, outlining the numerous incorrect claims [3]. I won't repeat what they state, and the only thing I have to add is that the response article to the original study cited is worth reading (written by one of the creators of the data set used in the discredited study) [4].

This time Spakovsky and Fund write about the Public Interest Legal Foundation, a nonprofit entity associated with The Heritage Foundation, the Public Interest Legal Foundation (PILF). The stated aim of the organization is to "assist states and others to aid the cause of election integrity and fight against lawlessness in American elections." PILF has pursued legal action in a number of cases [5], with or without cause. For instance, against the city of Alexandria in Virginia. The city released an official statement, worth quoting here:

The Registrar’s office has provided PILF/VVA with all the information that the organizations have requested (and would have done so without the need for a federal lawsuit). In addition, the Alexandria Office of Voter Registration and Elections follows state and federal law when it comes to maintenance of the voter registration list.

The lawsuit was dismissed by a federal court in June 2016 because PILF/VVA failed to show a specific problem with the way Alexandria manages its voter rolls.

[6]

The full motion to dismiss can be read at [7]. I think it's worth mentioning that one of the reasons to dismiss was the plaintiff was unable to provide evidence voter fraud had occurred (paragraph 52), although this is rather tangentially related to the actual lawsuit.

That's a bit of background, but now I want to discuss two aspects of the National Review article: the voter fraud allegations, and the current Virginia lawsuit.

There are several claims made in the article, explicit and implicit:

In this case, the specific records sought to identify thousands of aliens who were illegally registered to vote in Virginia. Many of these non-citizens actually cast ballots in prior elections.

...

Prior to the November election, it uncovered more than 1,000 illegal aliens registered to vote in just eight counties, and those were just the cases it caught by accident;

The theme throughout is that there are thousands of people voting illegally, and the Obama administration is passively endorsing these people. Evidence for this voter fraud is given by linking to a report published by PILF [8]. The methodology used by PILF to generate these numbers is rather unclear; they cite documents as far back as 2005 as evidence for noncitizens voting (or now being denied the ability to vote) in 2016. The report itself states they only found 31 non-citizens that had actually voted (2005 to 2015), from the data made available by eight counties in Virginia. To get a sense of scale, the presidential elections of 2008 and 2012 (the time period covered) had 1,700,316 votes tallied in those eight counties [9] [10]. Now subtract 62 from that number. (I'll return to this subject below.)

The other aspect of the article I want to mention is the current lawsuit. PILF is actually involved in multiple lawsuits; the current ones in Virginia (at least) are very similar to the Alexandria case mentioned above (see Appendix A). The cases actually revolve around access to information; none of the cases are about voter fraud. The Project Vote case was about voter discrimination, and information related to denial of the right to vote. The current PILF lawsuits allege that "non-citizen removal" records should be publicly accessible under section 8 of the NVRA, which says

Section 8 of the NVRA requires that States keep and make available for public inspection, for a period of at least two years, all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters [11]

PILF chose a slightly different tactic after Alexandria and no longer claims "the legitimacy of elections in Virginia will be undermined." This seems to have narrowed the focus of the lawsuit; the Manassas case was denied a motion to dismiss (Jan 27, 2017), unlike Alexandria. What will come of the Manassas and Chesterfield lawsuits remains to be seen, but the only change likely to be brought about will make non-citizen cancellation records more publicly available in Virginia. Claiming that the current PILF lawsuit (in Manassas) is identical to the Project Vote lawsuit, and additionally that the Obama administration willfully chose not to pursue "equal enforcement of the law" is specious at best.

Does that mean voter fraud never occurs? No, there is evidence that it does, in miniscule amounts. However, it is not widespread. Additionally, for the voter fraud that does occur, voter ID laws rarely address the issue. Tampering by officials is a much larger issue than organized voter fraud. (See [12] for a recent write up, and [13] for a more detailed look at the numbers. The Washington Post also has a scholarly take on the matter [14].) Overall, I think the Spakovsky and Fund quote -- that they "tilt at voter-ID windmills and render aid to their ideological allies’ pet legal theories" -- applies to a group other than the Obama administration it was aimed at.