Is there evidence of voting fraud? Not if you look at all the facts.

Lawyers are skeptics not because they are innately skeptical but because they are trained by experience not to trust the first plausible explanation of a given set of facts.

ACORN is very much in the news these days. As the New York Post reports, “The vote of Darnell Nash, one of four people subpoenaed in a Cuyahoga County probe of ACORN’s voter-registration activities, was canceled and his case was turned over to local prosecutors and law enforcement, Board of Elections officials said yesterday. Nash had registered to vote repeatedly from an address that belonged to a legitimately registered voter, officials said during a hearing at which the subpoenaed voters were to testify.”

News like this provokes Sarah Palin to declare, “The left-wing activist group, ACORN, is now under investigation for voter registration fraud in a number of battleground states… We can’t allow leftist groups like ACORN to steal this election.”

Let’s take a look at this news. First, as my colleague Jonathan Adler points out, “Of course registration fraud and actual voter fraud are not the same thing.” (emphasis added) In other words, the fact someone is fraudulently registered does not mean that he will or can get away with fraudulently voting. In fact, there is no evidence in recent history of any voter fraud involving voting by fraudulently registered voters. Jon would counter that registration fraud makes it impossible or at least very difficult to prove voting fraud.

First, I’m not sure why that’s true. Voting fraud investigations would look into whether people who had voted were properly registered. The same evidence available in the prosecution of registration fraud would therefore be available.

Second, it’s at least suspicious that the eruption of investigations and prosecutions of alleged registration fraud shortly before an election follows so closely the pattern that David Iglesias, the former U.S. Attorney in New Mexico, points to as the background of his firing by the Bush administration. Having investigated such allegations and found them inadequate to support any prosecution for voting fraud, Iglesias was fire, apparently for not following the Republican script. Now the Mukasey Justice Department appointed a special prosecutor to look into the firing of Iglesias and several other U.S. Attorneys.

Iglesias has explained that he was pressured to bring these types of voter fraud claims by Republicans in New Mexico shortly before elections in order, in his view, to influence the elections. He investigated the claims and concluded there was no basis for prosecution. Is there suddenly now evidence for identical prosecutions?

So is there widespread work to get enough fraudulent voters on the rolls to elect Obama? I doubt it. In fact, I am prepared to say, no way.

Addendum:

U.S. Department of Justice crime statistics cast doubt on the existence of widespread voter fraud. According to a report by the Justice Department’s Criminal Division on prosecutions between October 2002 and 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 were pending at the time of the report. Further, on April 12, 2007, The New York Times reported, “Five years after the Bush administration began a crackdown on voter fraud, the Justice Department has turned up virtually no evidence of any organized effort to skew federal elections, according to court records and interviews.”

Additionally, a 2007 report titled “The Truth About Voter Fraud” by New York University’s Brennan Center for Justice stated: “[W]e are aware of no recent substantiated case in which registration fraud has resulted in fraudulent votes being cast”:

There have been several documented and widely publicized instances in which registration forms have been fraudulently completed and submitted. But it is extraordinarily difficult to find reported cases in which individuals have submitted registration forms in someone else’s name in order to impersonate them at the polls. Furthermore, most reports of registration fraud do not actually claim that the fraud happens so that ineligible people can vote at the polls. Indeed, we are aware of no recent substantiated case in which registration fraud has resulted in fraudulent votes being cast.