June 5, 2007. It was poised to be a big day in North Carolina political history: State senators were about to vote on H 91, a historic election reform bill bill that would allow voters to register and vote at the same time at hundreds of early voting sites across the state.
But minutes before the vote, a cryptic email popped into the inboxes of a few state senators from Les Merritt, the state's Republican state auditor. Citing unspecified "sensitive information" about potential "voter irregularities," Merritt made the almost unheard of demand that the N.C. senate call off the vote until he could present his office's findings.
The state lawmakers complied, but not without misgivings. As state senators Dan Clodfelter and Tony Rand wrote back [pdf] to Merritt:
We are sure you appreciate how unusual it is for us to receive a specific request that we not take action on a pending bill, which has already passed the House and has received favorable committee action in the Senate, and we therefore trust that you have substantial, credible, and specific evidence to back up the general inferences in your letter.
But days later, when Merritt was asked to reveal his findings at a June 17 senate committee meeting, he decided he didn't have such evidence after all. As the Charlotte Observer reported:
State Auditor Les Merritt backed away Tuesday from the early findings of a review of North Carolina's voter rolls, telling lawmakers his office might find no irregularities at all.
"We'll eventually get to a correct, final report," Merritt said, "and that final report, it could very well say there isn't anything here, that everything's fine, we're doing a super job.
The Observer called Merritt's abrupt reversal "puzzling." Sam Watts of the N.C. Center for Public Policy Research said "that's as odd as a tutu on a hog." And in the 2008 elections, Merritt's challenger Beth Wood successfully used the controversial incident as proof that Merritt had politicized the auditor's office, en route to sweeping Merritt out of office after one term.
But Merritt's retirement from public life was short-lived. Art Pope, North Carolina's ubiquitous benefactor of conservative causes, swiftly launched a new non-profit with Merritt at the helm called the Foundation for Ethics in Public Service.
Among the Foundation's top issues? Supposed "voter fraud," a favorite cause of the political right that -- despite little evidence of its actual existence -- has also been a leading crusade of Art Pope's network of conservative groups in North Carolina and nationally.
Unlikely ethics champion
Les Merritt was an unlikely choice to head a national organization which aims to "bring a new level of transparency, accountability and integrity to all levels of American government."
Born in rural eastern North Carolina, Merritt got his start in politics as a commissioner in Wake County, N.C. where he served one term from 1994 to 1998. Here he was known as a fiercely partisan ideologue, and not afraid to bend the rules to get his way.
For example, in October 1998 -- right before being voted out of office -- Merritt intervened in the county's bidding process to rush through a $26.9 million, no-bid contract for a new 911 radio emergency system. The beneficiary of the deal? Motorola, whose lobbyist happened to be none other than Merritt's campaign manager, Ballard Everett.
Merritt's interest in "transparency" also appears to have frequently fallen victim to political expediency. As a county commissioner, Merritt and his fellow Republicans were often criticized by their Democratic colleagues for holding secret meetings to conduct business.
In 1997, after GOP commissioners had held a series of private gatherings to discuss plans for a new Raleigh athletic center, even Republican mayor Tom Fetzer called on Merritt's group to stop the covert planning, saying "I think those of us who are interested in the integrity and the credibility of this body need to keep these deliberations in public and proceed to a vote forthwith."
A one-eyed watchdog?
Merritt's reputation for secretive crusades carried over into his term as North Carolina's state auditor, which he also held for one term between 2004 and 2008. Merritt raised eyebrows by quickly moving to hire Republican operatives -- as one source close to the office told Facing South, "die-hard neo-cons" -- like Chris Mears, former political director of the N.C. Republican Party.
When Merritt's office launched its "strategic review" of North Carolina voting systems in January 2007, he took the unusual move of failing to inform the N.C. State Board of Elections that the inquiry was happening, or to have election officials explain the "irregularities" the auditor's office believed it was finding.
Merritt's failure to consult with state election officials proved damaging to his inquiry. Merritt's report has never been made public; a Facing South request this month for Merritt's 2007 voting inquiry was rejected by the state auditor's office on the grounds that it's a "working file."
But key points from Merritt's "preliminary" findings were leaked to the media, and included what sounded like startling claims:
Merritt's staff cited 24,821 invalid driver's license numbers in the voter registration database, 380 people who appear to have voted after their dates of death and others under age 18 when they voted.
But in a stinging 10-page rejoinder, North Carolina elections chief Gary Bartlett marshaled evidence showing that most, if not all, of the allegations didn't hold up. The report was riddled with basic math and legal mistakes: In one section, Merritt talks about 4,227,708 voters as being "50% of all registered voters;" at the time, North Carolina's voter rolls contained only 5.5 million names.
Bartlett further argued that Merritt's office "appears to have a fundamental misunderstanding about the data that was reviewed or about the federal and State laws governing the voter registration process." For example:
* "Underage Voters" - Merritt's claim that voters under age 18 were participating in elections apparently failed to account for a state law "that allows 17 year olds to vote in a primary if they will turn 18 before the next general election."
* "Dead Voters" - The state board documented that, in many cases, "voters died during the absentee voting timed period after having voted absentee," also noting that there's at least a 90 day delay between the time state officials record deaths and the news reaches elections officials, who can remove them from the rolls.
* "Felon Voters" - While Merrit's office apparently claimed that "many persons convicted of felonies have voted since 2004," Bartlett notes there's nothing illegal about that: state law allows those convicted of felonies to restore their voting rights.
As for mismatching data, Bartlett acknowledged that -- despite the best effort of state officials -- cases of a voter's registration data not matching DMV of Social Security records happens; as Bartlett pointed out, a national sample of 2.6 million voter files found 46% mismatches with Social Security data, mostly because of administrative errors.
But N.C. election officials found the problems were small. Between 2004 and 2006, repeated cross-checks only turned up 41 possible cases of ineligible voters and 11 who may have improperly voted with a felony conviction. 15 duplicate records proved to be administrative errors.
Most importantly, despite the board of elections turning over all suspect cases to local and state law officials, to date there have not been any convictions for voter fraud.
"A significant opportunity"
The N.C. auditor's office under Les Merritt may not have had a firm grasp of North Carolina election law, but it did understand the potential political payoff of their crusade against "voting irregularities" -- and its ability to derail same-day voter registration, a bill Republicans fiercely opposed.
At first Chris Mears, the former Republican operative and Merritt's spokesman, insisted the office's "review" had nothing to do with the impending vote for the same-day bill. In an email exchange [pdf] with Bob Hall of Democracy North Carolina -- a group championing H 91 -- Hall asked Mears about Merrit's surprise June 5 call to stop the vote:
Is there a reason this information [from Merrit's voting "review"] is just being shared now, at the 11th hour for H 91?
To which Mears replied:
Bob, Thanks for the reply ... The timing is unfortunate as I just happen [sic] to notice a news account of the legislation and put two-and-two together with some of the work our audit staff is doing. [emphasis added]
But more internal emails later acquired by the Raleigh News & Observer revealed that Merritt and Mears were quite clear about the political objectives of their "review":
Auditor Les Merritt's spokesman played a key role in briefly halting a voting bill, according to e-mails received under a public records request.
At 10:12 a.m. on June 5, Chris Mears forwarded a Dome item on a bill to allow North Carolinians to register to vote the weekend before an election to Merritt, Chief Deputy Kris Bailey, Executive Assistant James Forte and legal counsel Tim Hoegemeyer.
"If we want to have an impact on voter registration legislation, we should get Sen. Berger information sooner rather than later," he wrote. "This is a significant opportunity to safeguard our democracy that I don't think we should pass-up."
Merritt agreed, saying that "time will pass us by." In a reply sent at 10:17, he wrote, "We may need to speak even if our audit is not complete."
At 2:34 p.m., Merritt e-mailed Sen. Dan Clodfelter to ask him to pull the bill. Senate leaders agreed.
After Merrit and Mears abruptly withdrew their concerns later in June, the bill for same-day registration at early voting sites quickly passed the senate and was signed into law. The measure has proved popular with North Carolina voters: In 2008, 91,736 North Carolinians registered at early voting centers and another 95,903 reported address changes, according to state figures.
The ghost of voter fraud returns
In 2010, Republicans and conservative groups in North Carolina and nationally are again raising the cry of "voter fraud," and Merritt's benefactor Art Pope can take much of the credit.
While a popular rallying cry on the right, there's never been much actual evidence of voter fraud. After the Bush administration Department of Justice launched a five-year campaign against suspected fraud looking at tens of millions of voter records, only 120 people were charged and 86 people convicted.
But that hasn't stopped its popularity as a hot-button issue on the right. In North Carolina, leading the charge is Civitas Action, a conservative political advocacy group and sister organization to the Civitas Institute, which relies on Pope's family foundation for 97 percent of its funding.
Civitas Action is behind the N.C. Election Reform Network, dedicated to fighting supposed voter fraud and pushing for a state law to require voters show I.D. at the polls.
The group's website is curiously lacking in evidence of actual voter fraud: The only link with supposed proof of fraud in North Carolina points to a case in Hoke County from May 2010, where two voters apparently voted twice. A state election official said they're looking into it, but noted that, from past experience, "As often as not, it's more of an error ... It's not always that someone voted twice on purpose."
If the evidence seems meager, the Civitas Action website also never explains how a voter I.D. requirement -- which proponents say aims to establish that the person voting is the same as the person listed in the registration rolls -- would prevent double-voting.
This week, the Carolina Journal -- a publication of the John Locke Foundation, which receives over 80 percent of its funding from Pope's family foundation -- released its own report sounding the alarm about the potential for widespread voter fraud.
Carolina Journal brings in another big issue for the right -- undocumented immigrants -- who reporter Kristy Bailey warns have "a good chance of beating the system" by filling out voter registration forms that falsely claim they're a citizen.
Bailey's story doesn't point to a single case of non-citizen successfully voting, or a documented case of non-citizen voter fraud in North Carolina. She does, however, offer this elaborate hypothetical scenario:
1) An undocumented immigrant could get a photo ID card from the U.S. Mexican consulate -- a so-called "Matricula Consular" ID -- which proves that the person is a citizen of Mexico;
2) The person then uses the Mexican ID card to get a North Carolina driver's license, as allowed by the state DMV;
3) The undocumented person then uses the N.C. diver's license to illegally fill out a voter registration form, including falsely stating in an affidavit that they are a citizen eligible to vote -- which the form clearly states is a felony. Indeed, N.C. General Statute 163-82.19 specifically addresses "any person who willfully and knowingly and with fraudulent gives false information" when registering to vote at a driver's license office, a Class I felony punishable up to five years in jail and a fine.
Why would undocumented residents in North Carolina, eager to avoid brushes with the law, engage in a complicated illegal scheme with such potentially severe consequences? Why would they use a Mexican ID that proves their foreign nationality to ultimately lie about being a U.S. citizen and vote? Won't the ongoing checks of the voter rolls against the Social Security Administration database, as mandated under the Help America Vote Act, flag many of these ambitious attempts at non-citizen voter fraud?
Despite these obstacles and the lack of any documented cases, Carolina Journal clearly believes it's still happening in North Carolina. For evidence, Bailey turns to James Johnson, a "retired electrician" from Cumberland County and founder of the far-right group North Carolinians for Immigration Reform and Enforcement, or NC FIRE.
Every month, Johnson's group publishes a "North Carolina Illegal Crime Report" -- a list of crimes committed by "suspected illegal aliens." Judging from the list, the only criteria for their "suspected" undocumented status is that they all have Hispanic names [pdf]. In NC FIRE's view, these Spanish-speaking "suspects" are uniquely dangerous to the state; in their words:
Some of the crimes illegals commit include: child molestation, human smuggling, ID fraud, identity theft, drug trafficking/distribution, gang violence, rape, murder, kidnapping, arson, DWI, driving with out a license, hit and run, assault, social services benefits fraud, illegal employment and tax evasion, among others.
NC FIRE is part of the national FIRE Coalition, an assemblage of right-wing militia, tea party and anti-immigration groups, including several chapters of the vigilante Minutemen, who say their goal is to fight "the largest invasion in the history of the world happening right under our noses; that is the invasion and occupation of the United States by illegal aliens from foreign nations."
With such an ominous view of the North Carolina's Hispanic and Latino population, it's not surprising that Johnson believes they could easily hatch a diabolical, if difficult and risky, plan like swamping the early voting process, as Bailey faithfully reports:
If there is a precinct that has a large illegal alien population, [illegals] could, theoretically, wait until very close to Election Day and flood the One-Stop offices with registrations, and there would not be time to check them.
Carolina Journal also relays -- without supporting evidence -- Johnson's belief that "illegals" are able to fool agencies that check the validity of their records: "This is actually the way most illegals are subverting the voting process."
While North Carolina crusaders against supposed voter fraud don't have much evidence about the problem, Carolina Journal does offer a solution: A voter ID law (although, again, how that would stop non-citizens from carrying out the hypothetical schemes the advocates fear isn't fully explained.)
And what election reform advocate does Carolina Journal cite in making the case for a voter ID law? Les Merritt, and the Art Pope-created Foundation for Ethics in Public Service.
PHOTO: Les Merrit, former Republican politician and now director of the Foundation for Ethics in Public Service