One night in late February 2017, Hans von Spakovsky, a lawyer at the Heritage Foundation, a conservative thinktank in Washington DC, fired off an email.
The White House was creating a commission to investigate voter fraud, an issue von Spakovsky had long pursued. But he was concerned the Trump administration was considering Democrats and moderate Republicans for the panel, and “astonished” no one had bothered to consult with him or J Christian Adams, a friend and fellow conservative lawyer.
“There are only a handful of real experts on the conservative side on this issue and not a single one of them (including Christian and me) have been called other than Kris Kobach, secretary of state of Kansas. And we are told that some consider him too ‘controversial’ to be on the commission,” he wrote. “If they are picking mainstream Republican officials and/or academics to man this commission it will be an abject failure because there aren’t any that know anything about this or who have paid any attention to this issue over the years.”
The email eventually made its way to Jeff Sessions, then US attorney general. A few months later, Kobach, von Spakovsky and Adams were appointed to Donald Trump’s commission.
It seemed inevitable. For years, all three men had used their positions both inside and outside of government to peddle the myth that American elections are vulnerable to fraud. Though this idea has been debunked repeatedly, and despite the ultimate failure of Trump’s commission, these men continued to promote the idea that widespread voter fraud justified stricter voting regulations.
“We’ve seen this going on for the last few decades,” said Richard Hasen, a law professor and election expert at the University of California, Irvine. “These ideas have moved from the fringes to the center of many Republican arguments about reasons for making it harder to vote.”
Now the myth of voter fraud is dominating the election. Trump has questioned the legitimacy of the vote, falsely suggesting it will be “rigged” against him and his campaign has floated using the idea of a fraudulent election as the basis for overriding the popular vote in key states, according to the Atlantic. Despite the pandemic, the president and his campaign have litigated to restrict mail-in voting and expand the use of poll watchers, citing the potential for tampering.
State Republicans have followed suit. Texas’s governor, Greg Abbott, limited each county to only one place where voters could return their mail-in ballots. South Carolina Republicans successfully fought to preserve a witness requirement for absentee ballots. Alabama Republicans have pointed to the potential for fraud to justify mail-in ballot restrictions. And in Wisconsin, a conservative group is urging the state supreme court to order the swift removal of more than 130,000 people from the voter rolls, citing the need to prevent fraud.
Von Spakovsky and Adams have been right in the mix. Von Spakovsky has quietly met and consulted with Republican election officials across the country, according to ProPublica. Adams has loudly hyped the dangers of voting by mail, earning Trump’s attention.
The hysteria over voter fraud has reached an alarming pitch. And this dangerous moment in US democracy would not be possible without the work of these three men.
Creating false evidence
Kobach, von Spakovsky and Adams worked in the justice department in the George W Bush administration at a time when pursuing claims of voter fraud was a priority. Since leaving, a core part of their strategy has been to distort statistics to depict voter fraud as a widespread problem.
As Kansas’s top election official, Kobach found a remarkably effective way to do this. He oversaw Interstate Crosscheck, a consortium of dozens of states that agreed to share voter data to find people registered in more than one state. The system matched voters by their first name, last name, date of birth and partial social security number.
One academic study found that more than 99% of the people the system flagged as duplicates were actually distinct voters. It was also more likely to flag eligible voters than ineligible ones. In 2013, Virginia officials used Crosscheck to remove nearly 39,000 voters from the state’s rolls, but one local registrar reported that 17% of voters in his county were wrongfully flagged and some voters turned up at the polls to find they weren’t registered.
Kansas agreed to end the Crosscheck program last year.
“There has been an extreme element on the right who have pushed a false narrative of widespread fraud for a long time. The idea that voter lists are bloated with ineligible voters has been a key element of that false narrative,” said David Becker, the executive director of the Center for Election Innovation & Research, and an expert in election administration.
Under Adams, Pilf has used questionable data to make similar claims. In 2016 and 2017, the organization published a report alleging thousands of non-citizens had cast votes in Virginia. It even included the personal information of some of those accused, who turned out to be citizens and sued Pilf for voter intimidation. Pilf eventually apologized, but internal emails showed the group was at least aware of a possible mistake before publication.
“We still have the opportunity to convert pushback into official confusion to justify our call for top-down overhaul,” Logan Churchwell, a Pilf spokesman, wrote in one email in response to concerns. “The fog of war favors the aggressor here.”
This year, the group released a report attempting to prove mail-in voting was vulnerable to fraud. Pilf initially claimed that about 1m mail-in ballots were undeliverable in 2018, but corrected the number after ProPublica revealed it was inflated and the organization had “doubled the official government numbers”. The report also claimed that 28.3m mail-in ballots had gone “missing” between 2012 and 2018. But experts told ProPublica that those were probably ballots that the voter decided not to return.
Trump still touted media coverage of the study in a tweet, saying: “Don’t allow RIGGED ELECTIONS!”
Adams declined to be interviewed for this story. “We don’t make claims about voter fraud,” he wrote in an email. “We point out vulnerabilities in the system. You have us mixed up with someone else. You are also exaggerating the so-called ‘error’ that ProPublica wrote about, it was a fraction that appeared on one document. But that’s what you are paid to do, be ridiculous.”
At the Heritage Foundation, von Spakovsky has touted a database that purports to show nearly 1,300 examples of “proven” instances of voter fraud. But the database is extremely misleading, containing cases going back decades and voters who made mistakes. (Von Spakovsky said in an email that the database is “thoroughly sourced and backed up by detailed references to government documents and media reports”.)
“You use the word ‘widespread’ fraud as if that is the only criteria [sic] worth considering. That is absurd,” he wrote in an email. “The Heritage Foundation Election Fraud Database demonstrates that there are many ways to engage in election fraud and that it occurs often enough that we should be concerned about it and should try to address it.”
Conservative media have helped widely disseminate these lies nonetheless. Kobach authored a 2018 op-ed in Breitbart News claiming “proof” that out of state voters had swung the 2016 election in New Hampshire. His smoking gun was state data showing that some voters used an out-of-state license to register on election day. Adams cited the data in his own op-ed.
But at the time, New Hampshire did not require voters to have an in-state driver’s license to vote. The state’s top election official quickly rebuked Kobach. Nonetheless, state Republicans passed a law tightening residency requirements linked to voting.
“It’s the same thing over and over and over – say it, say it, say it – and push it out there,” said Lorraine Minnite, a professor at Rutgers University-Camden who studies accusations of voter fraud. “It functions just like propaganda.”
(Kobach did not respond to several written questions for this story.)
Armed with their misleading data, these men have influenced and shaped laws making it harder to vote.
While at the justice department, von Spakovsky “was just looking for stuff so that he could push voter ID”, said Joe Rich, a former head of the department’s voting section who clashed with von Spakovsky.
In 2005, Georgia submitted a new voter ID law for approval to the department. Around the same time, von Spakovsky anonymously published a law review article advocating for voter ID laws, which career employees believe should have led von Spakovsky to recuse himself from the case.
Instead, von Spakovsky privately emailed with an attorney on the justice department team reviewing the law, fed him “arguments and analysis” and advised him to password protect documents from other attorneys. The career attorneys recommended against approving the measure, noting it would impede the voting access for African Americans, but were overruled by supervisors at the justice department with help from von Spakovsky’s feedback, according to the Nation.
A federal judge would later block the law, which reduced the number of acceptable forms of voter ID from 17 to six, noting that the acceptable forms of ID had fees associated with them, which amounted to a poll tax. A revised version of the law went into effect a few years later.
“He’s been the moving force behind photo IDs,” John Lewis, the civil rights icon who died earlier this year, told the New Yorker in 2012 about von Spakovsky. “It’s like he goes to bed dreaming about this, and gets up in the morning wondering, ‘What can I do today to make it more difficult for people to vote?’
“When you pull back the covers, peel back the onion, he’s the one who’s gotten the Republican legislatures, and the Republican party, to go along with this – even though there is no voter fraud to speak of. He’s trying to create a cure where there is no sickness.”
Von Spakovsky defended his work at the justice department.
“Fighting against election fraud ensures that every American who votes has confidence that his or her vote was counted,” he said. “I joined the civil rights division of the Department of Justice to enforce the Voting Rights Act and other federal voting laws in order to help safeguard our elections. Our job was to uphold the civil and constitutional rights of all Americans – and that’s what I did.”
In 2010, meanwhile, Kobach was elected Kansas secretary of state, and leveraged his new position to advocate for voting restrictions too. The Kansas legislature passed a 2011 law that required people to prove their citizenship when they register to vote – one of the most severe restrictions in the country.
Around the same time, bills cropped up around the country seeking to require voters to show a form of specific photo identification at the polls. Many of the laws appeared to be copies of each other – this was not a coincidence. They were written by the American Legislative Exchange Council (Alec), a consortium of conservative politicians and business groups founded in 1973 that offers a library of “copycat” model bills.
Republicans have pointed to these measures as deterrents to voter fraud, but in some cases, openly admitted they hoped the new laws would boost their political fortunes. “I don’t want everybody to vote,” Paul Weyrich, conservative activist and Alec founder, said in 1980. “As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down.”
In April of 2012, Alec eliminated its Task Force on Public Safety and Elections, which created policies on voter ID and elections, and removed the voter ID bill from its library. But recently, the group created a new group focused on election issues, and both von Spakovsky and Adams have spoken at Alec gatherings in recent years.
Behind Adams, von Spakovsky, Kobach is a circle of wealthy conservative donors, sharing close ties and a revolving door of staff and consultants.
The Lynde and Harry Bradley Foundation, a conservative group in Wisconsin, and DonorsTrust, known as a “dark money ATM” of the Koch network, have helped funnel millions to the organizations shaping restrictive voting laws and helping the myth of voter fraud proliferate, according to OpenSecrets data.
The Bradley Foundation’s funding, and an allied fund, the Bradley Impact Fund, ramped up their spending on voting issues since the leadup to the 2016 election. Included in their recipients were Pilf, where Adams is president, and the Heritage Foundation, where von Spakovsky works, according to tax records analyzed by OpenSecrets. Neither organization has disclosed what, if any, amount of that went to programs von Spakovsky is involved in.
The Bradley Foundation didn’t stop there. It gave millions to Alec, and influential groups like Judicial Watch and Wisconsin Institute for Law and Liberty (Will), which tried to force Wisconsin to purge more than 200,000 voters from the rolls last year. Meanwhile, millions in contributions from DonorsTrust and other prominent conservative donors have passed to Alec and the Heritage Foundation over the past decade, according to OpenSecrets data.
Judges rule against them
Despite the deep pockets pushing their agenda, von Spakovsky, Adams and Kobach have suffered stinging defeats in court where their claims have crumbled under scrutiny.
In 2016, the American Civil Liberties Union sued Kobach over Kansas’s proof of citizenship requirement, estimating that between 2013 and 2016 at least 35,000 people had been unfairly blocked from voting because of it, about half of whom were under 30.
The 2018 trial was a chance for Kobach and von Spakovsky, hired as an expert witness, to show a federal judge and the public the evidence behind their claims. Instead, it went terribly. When von Spakovsky was called to testify, he conceded that his work was not peer-reviewed and his conclusions about the prevalence of fraud were based on incomplete or misleading data.
US district judge Julie Robinson, a George W Bush appointee, said she gave “little weight” to von Spakovsky’s opinion on the case, which she said was based on “misleading” and “unsupported” examples of non-citizen voter registration.
“His myriad misleading statements, coupled with his publicly stated preordained opinions about this subject matter, convinces the court that Mr von Spakovsky testified as an advocate and not as an objective expert witness.”
Asked why the public should still consider him a credible expert after the case, von Spakovsky defended his work, saying “the public should discount the unfounded conclusions of a biased judge who refused to accept evidence that disagreed with her preconceived notions.”
In the same case, Kobach provided data that showed just 129 non-citizens had attempted to register since 1999. When Robinson examined the data she concluded that just 67 non-citizens had registered to vote in the state since then. She also took aim at Kobach’s strategy arguing that the scant evidence of voter fraud amounted to the “tip of the iceberg”. “There is no iceberg; only an icicle, largely created by confusion and administrative error,” she said.
Starting in 2013, Adams and other conservative lawyers began sending letters to US counties warning them of likely ineligible voters on the rolls and threatening legal action. Many counties were small, rural ones that could not afford long legal battles and were likely to settle, according to Mother Jones. In 2017, Pilf sent warning letters to 248 jurisdictions warning of potential ineligible voters on the rolls.
But experts say the methodology the group uses to make these allegations is misleading.
“It’s been pointed out many times how their data analyses are wrong,” said Becker, the election administration expert. “It seems like they just hope no one will notice.”
In 2018, a federal court noticed. In the first Pilf case that went to a full trial, the judge said the group had relied on a “misleading” methodology to accuse Broward county, a Democratic stronghold in Florida, of having inaccurate voter rolls. “They use an inflated voter registration number and a deflated voter-eligible population number, leading to a misleading result,” US district judge Beth Bloom wrote in her opinion.
Stuart Naifeh, a lawyer at Demos, a civil rights thinktank that has opposed many of Pilf’s purge efforts, speculated Pilf had ulterior motives.
“They may be more interested in pursuing the communications impact of coming into a county and saying ‘this county has dirty voter rolls’ than in any actual policy change,” he said. Allegations that voter rolls are inaccurate, he added, can then be used as justification for measures that make it harder to vote.
Voting restrictions persist
Though their claims have been debunked over and over, von Spakovsky, Adams and Kobach have managed to linger as go-to experts for Republicans on voter fraud at the highest levels of federal government.
“Von Spakovsky has had 15 years to put up or shut up and he hasn’t done either one,” said Bob Kengle, who worked in the justice department’s voting section when von Spakovsky was there and often disagreed with him.
But proof has never been an essential part of their work. By manipulating data, filing bad-faith lawsuits and unifying Republicans around a politically convenient myth, they have paved the way for voting restrictions as recently as this spring.
This year, Ben Ginsberg, considered a top Republican election lawyer, wrote that it was time for his party to admit voter fraud was not a serious problem. “The truth is that after decades of looking for illegal voting, there’s no proof of widespread fraud,” he wrote in a Washington Post op-ed. “Republicans need to take a hard look before advocating laws that actually do limit the franchise of otherwise qualified voters.”
But with a president willing to spread misinformation about voting in service of re-election, the chances seem unlikely.
“The only way we’re going to lose this election is if the election is rigged,” Trump said in August. “The only way they’re going to win is that way, and we can’t let that happen.”
Data was provided through a research partnership with OpenSecrets.org. OpenSecrets researcher Anna Massoglia contributed to this report.