Doubting Democracy (Part 5 of 8)
The eight-months long fight over the 2008 Minnesota Senate Election and the ramping up of the rhetoric after the 2012 election.
Click on the below links to view the other parts of this series:
Doubting Democracy 1: Introduction & the Prelude to 2000
Doubting Democracy 2: The 2000 Presidential Election in Florida
Doubting Democracy 3: The 2004 Presidential Election in Ohio
Doubting Democracy 4: The 2008 ACORN Scandal
Doubting Democracy 5: The 2008 Minnesota Senate Election & the Post-2012 Narratives
Doubting Democracy 6: The 2016 Presidential Election Narratives
Doubting Democracy 7: The 2018 Georgia Gubernatorial Election (and 2020)
6. THE 2008 MINNESOTA SENATE ELECTION
JANE MAYER (2012): “Before 2000, there were some rumblings about Democratic voter fraud, but it really wasn’t part of the main discourse. But thanks to [Hans] von Spakovsky [a lawyer for the Bush Administration who is now at the Heritage Foundation] and the flame-fanning of a few others, the myth that Democratic voter fraud is common, and that it helps Democrats win elections, has become part of the Republican orthodoxy.” In December, Reince Priebus, the chairman of the Republican National Committee, wrote, “Election fraud is a real and persistent threat to our electoral system.” He accused Democrats of “standing up for potential fraud—presumably because ending it would disenfranchise at least two of its core constituencies: the deceased and double-voters.”
There was a significant ratcheting up of the rhetoric on voter fraud and voter disenfranchisement during the Obama years. For example, that 2012 Jane Mayer article also quoted Bill Clinton as saying that the “effort to limit the franchise” by Republicans was the most determined “since we got rid of the poll tax and all the other Jim Crow burdens on voting.” This hyperbolic and unfortunate use of invoking “Jim Crow” has only got more and more common among Democrats in the years following this.1 And remember that this was happening back when the only real policy that was being extensively debated was voter ID laws — which, as I mentioned before, were overwhelmingly supported by the American people (at numbers of up to 70-80%) on both sides of the aisle. There were even states that passed voter ID laws while also providing free state IDs to people who did not have driver’s licenses. It would have made way more sense for Democrats to push for more provisions such as that, rather than making the rather bizarre argument that democracy hinges on allowing people to vote without even having to prove they are who they say they are.
On the other side of the coin, Jane Mayer’s piece also focused on the efforts of Hans von Spakovsky to promote the right’s voter fraud narratives. Von Spakovsky had been George W. Bush’s nominee for the Federal Election Commission, but after years of opposition by Senate Democrats (while he sat on the FEC as a recess appointment), his nomination was withdrawn in 2008. Just like Kenneth Blackwell (who you may remember from the 2004 Ohio election debacle), Von Spakovsky was later appointed by Donald Trump to his “Election Integrity” commission which had tried (and failed) to find evidence of massive voter fraud during the 2016 election. After leaving the Bush administration, Hans von Spakovsky went over to the Heritage Foundation, which you may recognize as the organization behind the infamous Project 2025 that everyone has been talking about. Von Spakovsky actually wrote Project 2025’s section on the Federal Election Commission (page 861).
JANE MAYER (2012): [Hans von Spakovsky’s book] “Who’s Counting?” opens with an insinuating account of how Al Franken, the Minnesota Democrat, was elected to the Senate in 2008. According to the book, there is “compelling” evidence, compiled by a citizens’ watchdog group, that “1,099 ineligible felons voted illegally” in the contest — “more than three times” Franken’s victory margin. The subhead of the chapter is “Would Obamacare have passed without voter fraud?” Fox News and other conservative media outlets have promoted this argument. However, Mike Freeman, the Hennepin County Attorney, who oversees Minneapolis, told me, “Those numbers are fraudulent. We investigated, and at the end of the day, out of over four hundred allegations in the county, we charged thirty-eight people. Their research was bad, sloppy, incredible. They are just liars.”
The accusations about the 1,099 ineligible felons voting in Minnesota was brought to light by by a conservative watchdog group called Minnesota Majority. The conservative press (even the mainstream outlets) gave a lot of oxygen to these claims, which eventually forced the local authorities to investigate the matter (years after the election had been decided). As you can probably guess, it did not turn out to be quite as nefarious (or rampant) as the conservative media portrayed it, but it did yield some results.2 However, some of the “felons” Minnesota Majority flagged turned out to not be felons but rather people with the same names as felons; others ended up being felons who had already had their right to legally vote restored; and others were just felons who did not realize that they were not eligible to vote (since the laws on these things vary from state to state and can get pretty convoluted).
I will say that the latter issue is still a problem worth taking seriously since, as Hans von Spakovsky put it, “It doesn’t matter whether they intended it or not. The point is they did vote.” Of course, it only amounted to a small number of illegal votes, and it’s also a far cry from the narrative of an intentional conspiracy. Not to mention that this wouldn’t even be causing us any headaches in the first place if Republicans just stopped wasting our time trying to disenfranchise felons (just my personal stance).3
Republicans I knew frequently brought up the Minnesota Senate election of 2008 to me back in those days — and it was indeed an insanely close election. Al Franken was initially down by a couple hundred votes after election day, but following several recounts he ultimately ended up winning by 312 votes. Not only was it an even thinner margin than the Florida recounts of the 2000 presidential election, but it took eight months for it to finally be resolved by the Minnesota Supreme Court and for Al Franken’s opponent, Norm Coleman, to concede (although Coleman continues to believe he was the rightful winner). The reason Hans von Spakovsky added the tagline, “Would Obamacare have passed without voter fraud?” is because without that Minnesota Senate seat, the Democrats would not have sealed their filibuster-proof supermajority which allowed them to narrowly pass the Obamacare bill in 2010.
It was unfortunate that Republicans became far more focused on proving a “conspiracy” by scheming Democrats, rather than highlighting the very real concerns with election integrity that the election showcased. After all, even in Jane Mayer’s piece, she had a segment that noted, “Nearly all scholars of America’s system of locally run elections acknowledge chronic problems, including administrative incompetence, sloppy registration rolls, unreliable machinery, vote buying, and absentee-ballot fraud.”4 Again, nothing that dramatically affects election outcomes in most cases, but it is there and it is a real problem. Especially since close elections like Florida in 2000 and Minnesota in 2008 are likely to become more common in the future, not less, as our politics gets more evenly divided and increasingly partisan (and as less and less competent and objective people want to take on the thankless job of overseeing these contentious elections).
After all, if an election is really so unbelievably close that these types of voting issues can affect the outcome, that means the election is at the point where it is essentially a coin-toss — making it a situation where is almost equally “fair” to declare either candidate the winner (assuming the recounting is done in good faith). However, the “fairness” of the result will not matter to a highly-polarized public when the winner will likely have views and policies that are so vastly at odds with the loser’s. When American voters are living in a world where they think their opponent’s ideology is an “existential threat” to them (which is where most of the American electorate is now at), they will feel like losing the “coin-toss” is the end of the world — rather than a perfectly fair and acceptable outcome in the grand scheme of things. That’s why it was okay to concede in the face of a coin-toss election back when it was Richard Nixon vs John F. Kennedy or Al Gore vs George W. Bush — yet it now no longer feels okay to do so when it’s a Donald Trump (or any MAGA Republican) vs Kamala Harris (or any “Marxist” Democrat).
D.J. TICE (2022): In the fall of 2008 I was working in the Star Tribune newsroom as government and politics editor, overseeing an able team of exhausted reporters relieved to be coming to the end of covering a hard fought U.S. Senate race between Republican incumbent Norm Coleman and Democratic challenger Al Franken. But instead of enjoying a well-earned rest after a decisive election night, we spent the following eight months, virtually every blessed day, trying to make sense of one of the longest and most complex election disputes in American history.
I’m no election denier — I firmly if not joyfully confess that Joe Biden is my president. But I certainly am a perfection denier, and not least where it concerns Minnesota state government… As evidence of near flawlessness, we are routinely offered the reassuring fact that only a scanty handful of convictions for voter fraud ever occur. Well, a good many Minnesotans are ticketed for speeding or arrested for drunken driving. But no one supposes for an instant that those tickets and arrests account for all of the speeding and tipsy driving incidents out there.
Deliberate cheating is not the main risk. Errors, confusions and inconsistencies create most hazard of votes being miscounted… Every election is a bewilderingly complicated undertaking, big and messy, involving millions of voters and thousands of locations, officials and volunteers. Mistakes and conflicting interpretations of rules are inevitable — but in the vast majority of contests the margins of victory are large enough that misfires make no difference. Still, minimizing them is a worthy goal… Trouble is, an enthusiastic effort has been underway for years to make voting ever more convenient and undemanding, and accessible to voters facing special challenges, such as the disabled. Many of those efforts necessarily complicate the voting system and the mechanisms for validating votes — especially by greatly increasing the use of absentee or mail-in voting.
In 2008, when a Minnesota voter still needed a special reason to vote absentee, only about 10% of total votes were cast remotely. By 2020, following the advent of “no-excuse” absentee voting, extended early voting and more, fewer than half of all votes were conventionally cast on Election Day. And this is what stirs thoughts of 2008-09. Even then, absentee ballots — whether wrongly rejected or wrongly accepted — were the central cause of trouble.
Since we don't have eight months to endure all the details, I'll oversimplify. As the recount and courtroom contest proceeded, it became clear that officials in some Minnesota counties had strictly enforced rules regarding how voters filled out their absentee ballots and ballot applications, right down to engaging in amateur handwriting analysis to compare signatures. Meanwhile, officials in other counties had taken a more relaxed view of the requirements, enforcing only what the courts came to call a “substantial compliance” standard.
Either approach was defensible, and in most elections the variations would have made no difference. But in the absurdly close Coleman/Franken showdown it seemed like a bit of a problem that thousands of absentee ballots had been rejected in certain counties because of voter errors that had been ignored for thousands of other voters who cast absentee ballots with the very same errors in different counties.
The courts had no fully satisfying options. Thousands of ballots accepted under lenient standards had already been counted and could not be uncounted. So the only way to treat all voters the same and strictly uphold “equal protection of the law” would have been to throw out the rule book and accept all absentee ballots that met the most relaxed interpretation of the requirements. The Minnesota Supreme Court instead chose to enforce the rules stiffly where it could, making peace with the imperfection of real-world elections.
The court wrote in its final ruling that “differences in available resources, personnel, procedures, and technology necessarily affected the procedures used by local election officials reviewing absentee ballots.” But it concluded that “... unequal application [of state law] to those who are entitled to be treated alike, is not a denial of equal protection unless there is ... intentional ... discrimination.”
The point here is that 2008 showed how the complexities of a mail-in voting system increase risks of unfairness among voters when an election becomes abnormally close. Minnesota made improvements in its absentee/mail-in ballot procedures following the 2008 ordeal. But other innovations may have produced new hazards. Let's just not be too quick to assume everything is ideal and every criticism is an assault on democracy.
7. THE 2012 ADDENDUM
In the aftermath of the 2012 election, and during the 2014 midterms, I was regularly fielding emails from the Republicans I knew which linked to conservative media pieces about voter fraud. One prominent narrative focused on the changes made in 2013 by Colorado’s Democratic state legislature by HB 1303, which Republicans feared would lead to serious abuses. Those fears appear to have not been borne out in the end, but at the same time I don’t think those fears were all totally baseless. I myself was always skeptical of same-day registration (one of the provisions in HB 1303 that conservatives complained about), although I have come around on it now (depending on how it’s carried out). However, I still think Colorado’s provision for mailing a ballot to every registered voter — regardless of whether they wanted one or not, or whether they planned to vote in-person or by mail — did nothing other than to needlessly complicate an already complicated process. I think the problem is Democrats always think it’s more important to be proactive than pragmatic; just as Republicans think it’s more important to be suspicious than sympathetic.
The one item I remembered discussing the most back then was a Breitbart article that promoted yet another Project Veritas video from our old friend, James O’Keefe, which showed Democratic campaign workers encouraging a woman “pretending to be an illegal immigrant from Brazil” that it was okay for her to vote. The video was similar to the ACORN scandal, in that the people caught on camera were just low-level employees working to “get out the vote” who had no authority to register or process a voter themselves (only the local and state officials can do that) — although some of them did appear to work closely with the campaigns. I noted how the woman pretending to be an illegal immigrant told everyone right away that she had a driver’s license and was already registered to vote, so from the position of those caught on camera — they had no responsibility to tell her not to vote if the local and state officials had already okayed her registration. That being said, it does illuminate why I dislike so many of these “grassroots” efforts to get out the vote. Because these workers seem to either not know, or not care, about understanding the laws in their states — they’re just trying to do what’s good for their “team” (and this applies equally to the grassroots efforts on the right too).
If you watch the video, you’ll note how after being informed that the woman in the film was already registered, the campaign workers’ responses were, “All I can say is try,” or “Let them find out if it’s wrong,” or “You should be fine as long as you’re registered.” In fact, the one guy who seemed to have any knowledge of the law was shown in the video asking, “How did you register without being a citizen?” — and only later did he point out (correctly), “If they let her register she can’t get in trouble.” The problem is the video never made any attempt to show evidence that this “illegal immigrant” would have been able to actually get registered (or cast a vote) in the state.
That Breitbart article also cited an academic study which “speculated that illegal, non-citizen votes swayed the 2008 election of Al Franken (D-MN) and President Obama’s victory in North Carolina during his run for president in 2008.” I’ll go ahead and spare you my long breakdown of how the actual report itself did not confirm the claims that were made in the Breitbart article. I mainly brought it up to note how there was a lot of conservative complaints about North Carolina during the 2008 presidential election around this time (claims which Trump echoed in 2016). Obama had narrowly won the state by about 14,000 votes, and it was the first time a Democrat had won the state since 1976 (and they haven’t won it again since).
In the decision for the 2013 case Shelby v. Holder, the Supreme Court struck down the segments of the 1965 Voting Rights Act which had previously prevented certain states “from enacting changes to their election laws and procedures without gaining official authorization” from the federal government first. In the wake of this decision, North Carolina was one of several Republican-led states to start passing voting laws that went much further than simply promoting voter ID. But in 2016, a federal appeals court composed of three Democrat-appointed judges (and with the encouragement of the Obama administration) struck the law down because they claimed that “the Republican-controlled general assembly requested and received data on voters’ use of various voting practices by race,” and then “with almost surgical precision” went after the specific items “that African Americans disproportionately used.”
I honestly don’t know how true that assessment was (I’ve learned not to take anything I hear on this issue at face value anymore), but this was another example of just how much the rhetoric (and the actions) were ratcheting up in this increasingly contentious debate. It is also ironic that North Carolina became such a focal point by conservatives in the voter fraud debate during the Obama administration, given that it later became the site of an actual conspiracy to commit voter fraud, perpetrated by Republicans, in 2016 and 2018.
I really got lost in the weeds when breaking down a lot of this stuff back in 2013-2014, but revisiting every single provision from every single law here would just get convoluted and boring (and would take more time than I’m willing to spend if I’m not getting paid for it). So I guess the main takeaway for me is how this was the time when both sides got really locked in on a narrative that made sense to them: For Republicans it was “stolen elections,” and for Democrats it was “the return of Jim Crow.” As I’m sure you can guess, I think both narratives were pretty awful — and I believe they had an awful effect on us as a nation as well.
Coincidentally, just as I was revisiting this era, I heard Tim Miller of The Bulwark reflecting on his years as a Republican operative when he was still working with people like Steve Bannon (who was the head of Breitbart at the time). I thought his comments would make a good bookend to this chapter:
TIM MILLER (2024): [Steve] Bannon was always so good at playing the media game and understanding it. We were in the Breitbart embassy … I think this was, like, 2013… We were having this very frank convo where he was saying, “Look, if you have something really good — you should go to the [New York] Times. If it’s really, really good — I got a person at 60 Minutes and I can help you get [it covered] there. But if you have stuff that you just kind of need to blow out of proportion a little bit — we’ll get Matt Boyle and Breitbart to do it.” … He understood how the system worked. The best way to do it would be to get a mainstream reporter to print something, because that’s a little unexpected. Because if the Times or 60 Minutes goes after a Democrat, then people will get more attention on it. And then the echoes will resonate through the various conservative media outlets, and the story can be expanded and driven that way… I did that same thing with local reporters and [Matt] Drudge [of The Drudge Report]. I had a lot of local reporters who loved me because we had good Drudge access and Drudge drove traffic… If you’re at [a local paper] and I give you a story and you publish it and then I send that story to Drudge and Drudge links it — you get huge traffic. That reporter is now coming back to me a lot, like, “Hey, give me more stuff.”
Even as recently as 2020 (before the election), Obama referred to the filibuster as “a Jim Crow relic” (which is just bad history by the way) when he pushed for eliminating the filibuster at John Lewis’ funeral in order to get voting rights legislation by Democrats passed. And Joe Biden has referred to “a 21st century Jim Crow assault” by Republicans, and even made the term “Jim Crow 2.0” a slogan in his official speeches — emphasizing that “it’s not hyperbole; this is a fact” (it’s actually an opinion).
The local Minnesota press said that there were 47 people eventually charged, as compared to the 38 the Hennepin County Attorney mentioned in Jane Mayer’s piece (although that was in 2012 and the local piece was from 2015). However, Hans von Spakovsky, along with his colleague John Fund, reported that a total of 243 were either convicted or awaiting trial (as of 2012), although that may be counting charges filed in all the other parts of Minnesota as well. Still, even if we don’t count all those awaiting trial who were never convicted, that number still would not have overtaken Al Franken’s margin of victory of 312.
Republicans obviously oppose voting by felons because they assume they vote Democrat. And to be fair, what little information there is on felons’ voting patterns (and there does seem to be very little) does show they favor Democrats over Republicans, but not by as wide a margin as I would have expected. As an example, Florida lifted its ban on felons voting in 2020; and prior to that, the registration rates of felons who were registered in Florida showed about half registered Democrat, one quarter Republican, and one quarter independent. However, in 2020, Jared Kushner bragged that most of the new felons who had registered were supporting Trump. It’s hard to know if his claims are at all accurate, but I did think it was interesting that the lifting of the ban in Florida was shown to have enfranchised more white felons than black ones. I should also note that former felons tend to have a very low rate of turnout for elections (which did not surprise me). In Florida, less than 10% of eligible felons registered to vote after the ban against them was lifted in 2020.
That same segment of Jane Mayer’s piece also noted, “In 2008, [Supreme Court Justice John Paul] Stevens [who was considered a liberal justice, even though he was appointed by Republican Gerald Ford] helped uphold Indiana’s strict voter-I.D. law in the face of a challenge from Democrats. He wrote, ‘Examples of such fraud in other parts of the country have been documented throughout this Nation’s history by respected historians and journalists,’ demonstrating ‘that not only is the risk [emphasis added] of voter fraud real but that it could affect the outcome of a close election.’”