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Justin Levitt

Justin Levitt is a counsel in the Democracy Program at the Brennan Center for Justice at New York University School of Law, a nonpartisan public policy and law institute that describes itself as focusing on “fundamental issues of democracy and justice.” Prior, he worked as a counsel for America Coming Together, a left-leaning 527 committee.

Sarah Laskow interviewed Levitt on April 8, 2008.

Start out by telling us your name and your position and what your background is with voting rights.

My name is Justin Levitt. I am counsel at the Brennan Center for Justice at NYU School of Law. The Brennan Center is a part think tank, part nonprofit law firm dealing with all sorts of issues concerning elections, concerning democracy, and to trying to bring a number of tools to bear in order to bring about policy change. It really benefits the American voter. They get straightforward and easy, or every eligible citizen who wants to cast a ballot can cast a ballot and have that ballot be meaningful and have it counted. I’ve been doing voting rights for some time now. I’ve been involved both in a partisan manner and an independent nonprofit institution, and now at a very nonpartisan, nonprofit institution. I’m just trying to make the machinery of democracy work better for the American people.

I called you and talked to you first of all about a paper that you wrote about voter fraud. In that report, you had a very specific definition of what voter fraud was. Can you explain, what is voter fraud?

It’s a specific definition but shouldn’t be difficult to understand. We put it out there only because there seems to be a lot of confusion, local or otherwise. Voter fraud is fraud by voters. It’s an intentional effort to manipulate the vote by individual votes. There are a lot of other problems that are in place in our election system that are often, willfully or not, confused with voter fraud. Some of these are fraudulent practices by election administrators or insiders. Some are simple administrative or clerical errors. Far too often, they get lumped together when we talk about problems in the system. That leads to a lot of policies that really don’t fix the very serious problems we do have. When you can slate a whole lot of things under the category of voter fraud that really have nothing to do with fraud by voters, that leads you to certain policies that don’t solve the problems we have, but really create new ones of their own.

Just to clarify, when you say problems that we do have, what sort of problems are you talking about?

There are still, unfortunately, occasional efforts by insiders to steal elections. There are also a lot of problems in the election system that aren’t necessarily caused by malice that aren’t the basis of anybody trying to steal the election, but still keep eligible voters from casting ballots or from having those ballots be counted. There are laws and procedures in some states that are put in place that, for example, disenfranchise individuals on the basis of typographical errors. There are decisions made to allocate resources, small things from the number of poll workers at a given station, and I say small decision. It seems like a small decision but actually has a very major impact, all the way through to how many machines to have, how many ballots to produce.

We’ve seen in these 2008 primaries an outpouring of civic energy, a real increase in turnout. That seems to have taken a lot of administrators by surprise. Nobody is saying that those are deliberate attempts to keep eligible voters from voting in the primaries, but we’ve still seen a lot of voters that haven’t been able to get their votes cast because resources weren’t properly allocated. There are any number of other decisions that we’ve made including registration laws that require a 30-day waiting period before an election. Again, these aren’t usually maliciously put in place, but they end up keeping people who are eligible citizens who really want to participate from being able to participate on Election Day. I include all of those things, down to the level of parking we have at some polling places, places where it’s very important to be able to find a place to park. These are all problems that keep real people from voting. They have absolutely nothing to do with voter fraud.

So just lay it out for us. If someone was going to commit voter fraud, what are the ways in which they could do it, or what are the ways in which people have done it or have been accused of doing it?

The ways we’ve seen in the past, sort of the most prevalent ways in which individuals, and far more often campaigns or machines, political bosses, have tried to commit voter fraud is either through vote buying — individuals buying and selling their votes, sometimes just showing up at the polls and sometimes agreeing to vote for a particular person — or through absentee fraud. There are provisions in place including the Help America Vote Act of 2002 that, in part, cut down on the latter. Sure enough, as states have implemented the Help America Vote Act, the degree of absentee fraud has gone down somewhat. Those are still the two most serious, very real ways in which elections may be fraudulent or ways in which elections may be manipulated by voter fraud.

What your research showed was that even with those sort of problems, it’s not generally a very impactful problem?

Yes. The two problems I mentioned, both buying votes and absentee fraud, are certainly serious and not to be condoned, but they’re rare. That’s a good thing. You would hope that most of the elections that we have every year don’t see any of the voter fraud. Our research was really into debunking a whole other set of alleged voter fraud. The claims are out there that this sort of alleged voter fraud happens all the time, it’s really rampant. Double voting, voting by dead people, impersonating people at the polls, voting by dogs. You hear occasional anecdotes. They’re ballooned, we’ve found, substantially out of proportion. First of all, the anecdotes are rare, and second of all, most of them aren’t true.

So what your research found was that there are a number of types of voter fraud that have to do with registration. I think I remember, like you said, double voting, which isn’t a problem at all, or very, very rarely a problem, but is talked about a lot.

Yes. Nobody, I think, will say that these sorts of things never happen, but they’re alleged to happen far more often than they actually occur. That drives policy that actually keeps real, registered, eligible citizens from being able to vote. The sorts of things that we’re talking about, double voting, voting by dead people, they make for great stories. They’re compelling news headlines. We think it’s really important, if you’re designing our election system, to focus on facts and to design policies around the facts that we actually have. When you look at the facts, most of the alleged stories just don’t pan out.

Why is it an issue at all if it’s not something that’s actually prevalent?

That’s a great question. We wouldn’t be devoting so much time and resources to it, to shooting down something that’s not really there if it weren’t actually causing the problem. What we found is, there has been, particularly over the past, say, seven years, a move both on the federal level and the state level to focus on voter fraud as if it were a very real and very significant problem in American elections. By focus on voter fraud, I mean to push particular policies that actually end up disenfranchising real people. The push has come from federal government officials. The push has come from various state government officials. We’ve seen, over the last seven or eight years, a real move to put policies in place that end up impacting real Americans in order to get at this phantom problem. The supposed cure in these cases is actually substantially worse than any disease.

That’s interesting that the source of this is the government officials and state officials.

Some of it is, I think, honest but under- or misinformed. In some cases, people believe that the policies they’re putting in place are sensible or they wouldn’t really impact real people. That’s just, unfortunately, wrong. Some of it, even more unfortunately, is I think not misinformed but is aimed at particular strategic or tactical advantage. Elections are, as we all know, close and hard fought on many occasions. There are some out there who are pushing these policies because they know that the people who will be left behind aren’t necessarily their voters. They may be pushing for very particular, tactical, or even partisan advantage.

The difference between the two, by the way, was really nicely crystallized in a fight over voter identification, restrictive voter ID provisions in Texas last year. It was a big fight that ended up very dramatically playing out in the state Senate with one particular state senator literally bringing his hospital bed to the Capitol. He had just had a liver transplant and very much against his doctor’s orders had actually brought his hospital bed to the Capitol to make sure he was there to stop the procedural vote that would have put a photo ID requirement in place in Texas amidst a very high-pitched battle over policy.

There was a quote in the Houston Chronicle by a gentleman named Royal Massett, former political director of the Republican Party of Texas. He said, “We take it on faith, as an article of faith, that voter fraud is costing us elections.” I don’t believe that, but I do know that restrictive photo ID requirements could cost legitimate Democratic voters about 3 percent at the polls. I don’t care what party you’re from. If you’re putting in place a policy that doesn’t solve any problem but that causes 3 percent of legitimate voters to stay away, that’s not a policy that belongs in our system. This is exactly the sort of effect that the focus on voter fraud that really doesn’t happen is causing.

In your research about this, or just from working with the issue, do you find that these sort of campaigns within state houses or on a federal level involve third-party groups, or is it really just an issue that is played out between different parties?

Some of it is played out between different parties. Some of it is played out, unfortunately, with the impact on nonpartisan institutions. There are, for example, a number of laws placing very heavy restrictions on independent, nonprofit voter registration groups. Some so severe, actually, one particular law in Florida exempted the parties but particularly targeted independent, nonprofit voter registration groups. It was so severe that it actually put the League of Women Voters out of business for most of 2006.

For the first time in over 70 years of registering voters of all parties, of all shapes, of all sizes, the League of Women Voters of Florida said: “This law is too restrictive. It’s going to drive our volunteer organization bankrupt. We can’t register voters this year because the law is in place.” These are rather substantial penalties. Often, they play out for particular parties, but in these cases, the real brunt of it is being felt not only by the independent nonpartisan groups, but by the voters that they serve. 

One of the things we’re interested in in our project is how money flows around these sorts of issues. In our research, there was one group that came up, American Center for Voting Rights in 2004. It sounds like beyond that there’s not much of a third-party presence or money going into groups that are trying to influence this issue.

The American Center for Voting Rights is a curious creation. It’s a very curious nonprofit. It’s had a very short shelf life. It first cropped up, as you say, in 2004, and by 2006, really had disappeared entirely. Although it’s true of many nonprofits, its members were very closely related with partisan officials. The research that they produced was slipshod, and they didn’t stick around enough for most of it to be rebutted. By the time the work examining their research came out, they were already off the map.

So I put that there only as an asterisk by their name as far as nonprofit participation because there hasn’t been, as you say, really substantial independent validation of the push for investigating voter fraud for passing policies that restrict voting rights. There are some out there, I will say. There are organizations like, for example, the Evergreen Freedom Foundation in Washington State that has really been producing materials that rail against voter fraud and suggest policies that we think are misguided. They’re certainly entitled to their inaccurate opinion.

So part of what your project does is monitor people who are making the opposite argument?

Yes. We focus, really, on, like I say, the facts that are out there. We think it is responsible, if you’re seeking to influence public debate, to really ground the work that you do in puritism and in real research. We don’t see our role as monitoring the groups that are out there as much as taking in the work that they do. If there are claims that ‘X’ policy or ‘Y’ policy is necessary, they can report it. We want to make sure the report says what it says.

One issue I read about in this election was an Indiana law that was challenged all the way up to the Supreme Court.

Yep, big controversy.

I think the Brennan Center was a little bit involved with that.

We were indeed. We weren’t attorneys for the actual parties in the lawsuit, but we had helped to coordinate a great deal of the submissions in the Supreme Court. A lot of different nonprofits, actually, got involved at the Supreme Court level. Most of them were voting [groups].

So what happens with these sorts of issues when they go to court? Who are the different sides? Who’s driving the issue? What sort of different parties get involved?

This law in Indiana, unfortunately, is one of the policies that is more divided on partisan lines. Some of the typographical error provisions I mentioned before is something that we’ve seen in various parties, supporting various incarnations in various parties, in different states.

The fight in Indiana was really the culmination of what has broken down, really, along partisan lines. There was a push in 2005 in particular — and this is when Indiana’s law was passed — for particular forms of photo identification at the polls. If you didn’t have this particular form of photo identification at the polls, with very small exceptions, you couldn’t vote a valid ballot. You couldn’t cast a ballot that would be counted. The push happened in a bunch of states around the country.

It was actually passed into law, this photo ID provision, only in three states, in its most severe form: Indiana, Georgia, and Missouri, and was later struck down in Missouri. It was struck down in Georgia actually and re-enacted later, with language that suits the court there, somewhat. It’s still an outlyer position. It has generally been, although not exclusively, supported by Republicans and opposed by Democrats.

That was the case in Indiana as well, where it passed on almost a perfect party-line vote. And elsewhere around the country, the same pattern has cropped up where these sorts of provisions are working their way through legislatures, again, still an outlyer position. Most states will require some form of identification at some point in the process but haven’t restricted their requirements to a particular form of photo ID in the polls. Sensibly, you can argue, going back to the push for voter fraud, because of the incidence of impersonation at the polls, the only problem that requiring a photo ID could possibly solve is actually far less than the incidence of Americans being struck and killed by lightning.

It’s extraordinarily rare. There are more reports of UFO sightings every year than reports of impersonation fraud at the polls over the last few decades. So, sensible problems that this photo ID movement is trying to solve really aren’t a concern. It happens every once in a while, but [there are] a handful of reported incidents over the course of a decade.

In contrast, requiring particular forms of photo ID, while that’s straightforward for many Americans, is actually quite troublesome for a fairly substantial minority. Various estimates say between 10 to 13 percent of eligible citizens don’t have this sort of photo identification that’s being required. Though it seems uncommon for many of us, for most of us, we think we may be able to whip out a driver’s license without much effort. If you don’t have an ID to start with, it’s actually a fairly significant burden to get one. That’s creating a real problem, and not in order to solve any existing problem that we’ve got.

You talked about a push happening in a bunch of states for this. Is it an organized effort that you’ve seen, or it sounds maybe like it could be like an epidemic almost, policy hatching?

Yeah, it’s not clear whether it’s an organized effort or an epidemic. There are certainly supporters that would like to see this sort of thing spread across the county, and they’re trying to help that along. The call has been taken up in various quarters, whether it’s being pushed by one particular person or group or not. From our point of view, it really doesn’t matter so much. The policy itself doesn’t make sense on its own merit. So we think it’s our responsibility, again, to get the facts out there.

That’s one of the things that we tried to do, and will continue to try to do, in the courts. The Supreme Court heard this case in January. What was interesting among the justices is, they had said previously, in 2006, they addressed a case. The case was mostly addressed on procedural grounds. It was a very technical decision, very short. It came up out of Arizona. It went up to the Supreme Court and back down very quickly. The opinion didn’t say much, but what it did say is, “Look, we really need to focus on the actual facts on the ground in cases like this.” That was stressed in their very short, several-page opinion in 2006.

In 2008, the questions we heard from the justices were very much consistent with that. They were very curious about what the impact of this on the ground would be. We certainly hope that the opinion that eventually comes down will reflect the need to really focus on the facts. There were a lot of assumptions made in the courts thus far about how these sorts of photo identification requirements work and whether they solve any problem that’s actually out there. But [there is] an unfortunate lack of rigorous analysis of real facts on the ground, and we hope that the Supreme Court instructs the courts around the country to really get back to that sort of careful weighing of pros and cons.

You said that the Help America Vote Act had helped with that to begin with. I guess you were saying it was in terms of the absentee fraud. Has it made a difference in other ways on the ground?

Sure. I mentioned, just on the ID issue, that Indiana and Georgia were really outlyer states. The vast majority of states don’t require any particular sort of photo identification documents at the polls. They require people to prove their identity at some point in the process. The Help America Vote Act was really the spurt of that. It said that a certain group of people — people who register by mail rather than showing up in front of an election official — have to show their identity in one of a range of ways before they vote. That was one of the things that the Help America Vote Act did. It was a rather lengthy compromise, after a lot of discussion in Congress, about the best way to satisfy the self-need to protect against fraud with the very real need to make sure that people weren’t unduly disenfranchised.

The Help America Vote Act has taken other steps, both to address fraud and smooth election administration. Implementation has been rocky, but we’re getting there. One of the other big things it required was for states to maintain statewide, computerized voter registration databases, electronic lists of all the voters in the state. Though this may seem like something of a no-brainer, before 2002 there were still places around where each town had their own voter rolls. Sometimes that consisted, in small towns, of index cards in shoeboxes or the equivalent. The Help America Vote Act says really, that’s cause for all sorts of problems. It’s cause for manipulation and it’s cause for concern that no cards get misplaced, the sort of administrative error we were talking about before.

So states, it’s your responsibility to maintain a statewide electronic database and to clean it regularly. Make sure that the people on the list are only registered once. Make sure that when people pass away they’re taken off the list. When they move, the move is reflected on the list. Very sensible provisions.

And it sounded like, in your report, that that’s an origin of where a lot of these false reports were coming from, just administrative errors that when they were looked into, or if they were prevented by a real rigorous data system, wouldn’t even be an issue.

It’s certainly, in part, that. The other thing is that we, as Americans, are still getting used to how to use these things. Reporters, in particular, have found these to be handy tools. If they’re not careful and start making claims that really aren’t justified. So, for example, there was a series of infamous articles — one in New York, one in Atlanta — that attempted to take death lists put out by the Social Security Administration, which keeps track of when people pass away. They take those electronic databases and compare them to the voter registration databases to see whether there were dead people on the rolls or dead people listed as having cast votes.

It’s a fine first step, but often the reporters didn’t really go beyond that to check out that what they got was what they thought they got. And it’s possible to make an awful lot of mistakes in comparing lists like these to each other. For example, people listed on the Social Security Administration’s list aren’t actually dead. For example, people pass away after they have cast a vote but because you just compared lists to each other, you think that they were dead before they cast a vote. For example, you’ve got two guys named John Smith. And, though a little bit rare — it happens a lot more often than people think — you have two guys named John Smith born on the same day.

So, without taking additional steps to make sure that what they have really is what they thought they had, there are all these claims out there: rampant dead voting, rampant deceased people on the registration lists. We see this with double voting, too, in New Jersey. Just as an example, it was part of several thousand people that they claimed were double voters.

There was a submission to the attorney general in 2005 made by comparing these sorts of lists to each other. They alleged — and it sounds so silly when you actually think about it — that a 62-year-old woman who voted in person at the very northern tip of the state then drove three and a half hours to the very southern tip of the state where she voted in person later that day. It’s a pretty long drive to cast two ballots. Those were the only two ballots they had on record for her voting. Her name was Kathleen Sullivan.

Instead, when we did a little bit of research behind this, what we found out — no surprise here — was that there were two Kathleen Sullivans, born on the same day. One happened to live in the northern part of the state; one happened to live in the southern part of the state. Entirely legitimately, both did their civic duty and went out and voted.

And who has control of the data lists and the administration of them? Is it all just internal to the government, or are any of them outsourced?

It’s usually internal to the government. There are outside companies that have certainly helped put these together. Some entirely, and some were brought in as consultants. But most states use outside expertise to compile the lists. The Help America Vote Act requires that the secretary of state, or the chief election official if it’s not the secretary of state, is the head person behind the list. They’re primarily in charge; the buck stops there. In many states, just as they always have, county election officials are more or less in charge of registration for their own county. So they have an additional responsibility to make sure that the lists are cleaned and right. At the end of the day, federal law says the buck stops with whoever’s in charge of the state.

We’ve been talking about voter fraud by individual voters. You mentioned fraud by election officials. Do the two ever intersect? When you talk about double voting or things like that, it seems to me that there’s maybe some possibility that election officials or partisan officials might encourage people to vote twice, and there might be some sort of intersection between what you’re talking about, just one person with no clear motivation to commit fraud, and someone who would be organizing those sorts of frauds on a larger level.

It happens but that, too, happens fairly rarely. It’s good. The vast majority of the elections in this country aren’t subject to that sort of problem. But it does happen. Vote buying is probably the best example of that, where a candidate or an incumbent will set up a ring and pay, or try to pay, lots of voters to vote for him or her. There have been a couple cases of that fairly recently. Absentee fraud rings, although, as I said, as they implemented the Help America Vote Act, they’re starting to clamp down.

Not that long ago, there were still several candidates and incumbents who were implicated in absentee fraud rings where they had registered a lot of fake people and then sent in absentee ballots in their names. Another way in which that happens, or has happened in the past, is through sort of party boss machine politics elections, where really somebody — like a Boss Tweed in the New York days at the turn of the century — has virtually ironclad control over local government officials in a particular area and can get the poll workers to basically cast a bunch of fake ballots for whomever they choose.

Those sorts of things are, fortunately, more rare nowadays. The most significant scandal of late in New York wasn’t Boss Tweed, it was in Brooklyn back in the ‘70s and ‘80s. You’re starting to see, fortunately, less and less of that sort of activity.

You mentioned that you had worked with this issue on both a partisan level and a level of independent groups. Can you talk a little bit about what it looks like from those different perspectives?

Sure. In the past, I had worked both for particular campaigns and for independent nonprofits in helping to register people and in helping to motivate them to vote, get out to the polls. The system that we have in America, unlike the system in many other countries, really depends on an enormous effort by private individuals to get people registered and to get people out to vote. In many other countries, it’s considered much more of a government responsibility to pave the way for elections to be clean and fair and well-populated. And in America, we really outsource a lot of that. We outsource it to candidates and their campaigns and to independent nonprofits. There’s an awful lot of the basic work to be done, making sure that people can register, making sure that they come out to vote, that private entities do.

And so what were you doing specifically? Were you acting as counsel?

In one of my previous lives, I was in-house counsel for a major independent group that was doing voter registration and voter mobilization, helping to make sure people were on the rolls as it turns them out. In another incarnation, I actually had the chance to get to know voter registration databases, voter registration systems by helping a campaign put them together, put together the registration systems for their own use, just in being able to contact voters and making sure that the message is heard.

Does that inform your work now?

Sure. It informs my work in a couple ways. One, it’s always nice to have had sort of real, practical experience, getting down to the real nuts and bolts of the system that you’re using, just to understand the voter registration systems better. I find I’m much more able to talk to local officials, county officials, state officials, because I’ve used many of the same tools that they’re now using.

But two, I know how easy it is to make mistakes. In particular, working with some of the voter registration systems that I’ve seen, I know that there are an awful lot of mistakes currently on the rolls from something as simple as swapping two letters of a name or hitting a typo in a name, to individuals who have moved. I understand that driving policy as if our voter registration rolls were perfect will actually end up disenfranchising a lot of real, eligible citizens. I understand that because I know how imperfect these systems are, even when there’s a lot of time and attention devoted to them.

When you were working for independent organizations, were you working for nonpartisan organizations? Did it have a bend one way or another?

Yeah. In my prior life, the independent organizations that I’ve worked for, some were wholly nonpartisan, and some were independent but party-oriented: not affiliated with a particular party, but certainly expressed a preference publicly for a particular political party.

And are there legal issues that you run into there with doing voter rights stuff, or is that separate from the sort of intricacies of what different sorts of independent organizations can and can’t do?

There are all sorts of regulations. Most of them basically have to do with the funding stream. Nonpartisan, independent organizations that are public charities, that are what we know of as 501(c)(3) organizations, the sorts of things that you can give money to and take a deduction for, there are all sorts of limits on what they can or cannot do or can or cannot say. They are very strictly forbidden from engaging in partisan politics or in expressing a preference. Those rules are followed very closely by the vast majority of nonprofits because for them it’s life or death.

So you can go out and register people to vote, but you can’t say, if you’re in 2004 for instance, “I support John Kerry,” or, “Do you support John Kerry or George Bush?” That sort of thing?

Absolutely correct. For other organizations, again, it depends on the funding streams. There are certain rules that apply to affiliated organizations. There are certain rules that apply to independent organizations that have a partisan preference. It all depends on how they’re funded. As far as the sort of nitty-gritty how you go out and register people, though, that doesn’t really matter so much. There, really the objective is to take people who aren’t yet engaged with the system, or aren’t yet registered, or aren’t yet registered at their new address if they’ve moved, and make sure that they get on the rolls. Everybody’s equally motivated to make sure that the people they contact actually end up on the rolls. The process looks remarkably simple.

And these issues of voter participation and fraud and so forth, what do they look like in this election cycle, besides these challenges to the ID laws? Are there things that you anticipate being a problem, or going better than in other cycles?

Well, there are. Unfortunately, for a number of reasons, it looks like — and there’s still time to avoid this — Florida may once again be the Florida of 2008. The current problems now with the Democratic primary, for example, and not knowing how, if at all, to really get at the preferences of Florida voters, given the various and sundry problems with what’s been going on in the past, in some ways is just a preview.

The problems with Florida and Florida’s voting laws don’t stop after the primaries. In some ways, they get a little worse. The sort of disenfranchising people for typos or for simple clerical errors is currently being challenged in Florida by a lawsuit that the Brennan Center has brought. Other restrictions that I mentioned, restrictions on nonprofits, nonpartisan groups like the League of Women Voters, the restriction that shut down the league in 2006 is back in another incarnation. The law was struck down and was just passed once again. It’s like in a modified fashion. That, too, is subject to legal action.

There’s a rule that’s been challenged and will be in place, essentially penalizing people who simply forget to check the boxes on their registration form swearing that they’re citizens, swearing that they haven’t been convicted of a felony. Once the registration deadline hits, even if that person is entirely eligible and able to come back into the county and say, “Hey, I’m eligible, I swear it. I just forgot to check the box,” the person is out of luck.

They just can’t vote.

They just can’t vote. Those three things are recent developments that have seen recent court action. There are a number of other provisions of great concern. I’m just picking on Florida now because they happened to have gone through this turn recently. It’s, by far, not the only state out there that we’re very worried about. There are a number of restrictions on registration. There are a number of restrictions on voting at the polls and there are a number of restrictions on, in the event those two don’t work, casting a provisional ballot and getting that counted, in place in states across the country.

Is there a focus on specific states?

No. These sorts of restrictions, lamentably, are in place in a lot of states that hadn’t been considered very swing in the past. They’re in states that have been considered very swinging in the past. The laws don’t tend to follow political divisions. You can bet the controversies were. The impact of these sorts of laws can be felt everywhere but felt much more obscenely in states where the outcome is very, very close.

It sounds like there are zombie laws that just won’t die. If you fix them, legislators will reintroduce them in some slightly different form because someone really wants them, whether it’s for partisan reasons or other reasons.

There are some. For the legislatures that are trying to do the right thing but are misinformed, our challenge is to educate them. For the legislatures that aren’t necessarily trying to do the right thing, our challenge is to educate the public. Really, the election should belong to them. It’s difficult, but when you can get public exercise about the way in which elections are being run, you can actually see a great deal of positive change.

We just saw, for example, very positive moves to implement same-day registration or Election Day registration. [This is] one policy that we think clears up an awful lot of problems with registration that people otherwise go through, and actually brings new people to the polls in demonstrated quantities. We’ve seen popular moves put that in place in three new states in the last three years.

That’s great. That’s what Jimmy Carter wanted to do in the ’70s.

There are a lot of good ideas that have been around for a while. The first wave of Election Day registration states actually put their systems in place in the ‘70s, and turnout has been up in those states ever since. For a lot of good reasons, there are good ideas that won’t die either. We certainly hope that they find more fertile ground in the future.

We were also wondering if you found that the recent scandal about the U.S. attorneys has had any impact on feedback that you get or the research that you’re doing. From a lot of the coverage, it sort of debunked the idea of voter fraud being a problem when you had these Republican-appointed U.S. attorneys coming out and saying that they weren’t able to find voter fraud even though they were being asked to look into it.

We certainly hope the message would have taken root even harder than it had. It was definitely helpful. The Brennan Center was one of the organizations that really first dug in to the U.S. attorney scandal. We were very concerned that this represented not only a broader pattern, but really an improper use of executive authority to put political pressure on prosecutorial institutions that had been above reproach and, in the strictest possible sense, nonpartisan referees.

I know they’re appointed by partisan elected officials; the president has the important power for U.S. attorneys. For centuries, really, the people who had been U.S. attorneys were regarded by individuals on both sides of the aisle as really the exemplars of prosecutorial neutrality. They might have different priorities from administration to administration, but it was very, very rare for anyone to use those partisan motivations, and particularly using their office, in the service of partisan ends. That was really something that we saw pressure put on these U.S. attorneys to do in the last couple years.

We know about the ones that stood up to that pressure and, entirely to their credit, refused to bring politically-timed prosecutions or promote publicity around prosecution for partisan ends. We also know that very few succumbed to the pressure, and it’s to their lasting discredit and discredit of the institution of the U.S. Attorney’s Office. Thankfully that’s rare and it seems to be turning around.

As you say, there was a lot of attention put on the fact that there were a bunch of long-time career prosecutors who were told, “See where you can find voter fraud.” They looked and looked hard and didn’t really find anything worth prosecuting. I would hope that would have meant more. We’re still seeing the press to find voter fraud for many of the same quarters who seem not to have learned the lessons of the U.S. attorney scandal.

Is there anything you think I’m missing or that you think is important to add to this discussion?

I think one thing is important to add to this discussion. We’ve been talking a lot about the problems and some of the challenges we face. I mentioned only very briefly some of the great opportunities. The public is paying a lot more attention to election issues now, ever since 2000. That is certainly a good thing. There are more courageous and/or motivated legislators and executive officials, the chance to do some real good and get some real public credit for it.

As I say, the Election Day registration laws that were passed are a great example of that. There have also been some very courageous executive actions, especially with regards to re-enfranchising persons with felony convictions, in Iowa, for example and most recently in Florida. That, too, has really been promising. There are a number of bills now working their way through Congress and through state houses that would further seek to eliminate administrative barriers and really facilitate eligible Americans getting out and voting.

It’s still the case that turnout in America is far lower than in most other countries, most other Western democracies. We have a long way to go, but there is some positive movement on the horizon. I think it’s important to present the other side of the picture. It’s easy to go into an election season focusing on the problems. We also have a great number of opportunities available. I certainly hope that we can capture some of those in the near future.