Right-wingers are in a tizzy over excerpts from a new book by two of the GOP’s leading voter-fraud hucksters alleging that Minnesota’s Democratic Senator Al Franken would not have won a statewide recount in 2009 were it not for ex-felons voting illegally.

They are jumping to the false conclusion that illegal felon voting in November 2008 not only tipped a recount in which Franken won by 312 votes—out of 2.4 million cast between the two men—but that tougher state voter ID laws would have changed the result. Both claims are wrong.

“And that’s just the question of voting by felons,” wrote the Washington Examiner’s report by Byron York, chief political correspondent. “Minnesota Majority also found all sorts of other irregularities that cast further doubt on the Senate results.”

The problem with this assertion—from a new book by The Wall Street Journal’s John Fund and George W. Bush Justice Department attorney Hans von Spakovsky—is that it is not just factually wrong, according to Minnesota Supreme Court records, the Minnesota prosecutor who investigated most of the cases, and some of the country’s top election scholars, but it is intended to rile a segment of the Right that thinks it is patriotic to demonize voting by non-whites and disrupt voting for everyone else.

“They are talking in code to their base,” said Rutgers University’s Lori Minnite, co-author of Keeping Down The Black Vote: Race and the Demobilization of American Voters. “My guess is that von Spakovsky and Fund know exactly what they are doing.”

“There is no basis in fact, whatsoever, in these inaccuracies propagated by the Minnesota Majority here, none,” Hennepin County Attorney Mike Freeman said Wednesday. “After the most closely scrutinized election in Minnesota history in 2008, there were zero cases of fraud. Even the Republicans lawyers acknowledged that there was no systematic effort to defraud the election, none.”

“In Hennepin County, 650,000 people voted,” he continued. “The Minnesota Majority presented us with 1,500 cases that they felt there were problems with voting. Our own election bureau gave us 100. At the end of the day, we charged 38 cases. And all but one of them are felons voting who were still under the penalty [of not legally applying to regain individual voting rights]. There was no fraud.”

In many cases, former felons are not aware that they have to go through a legal process to regain their voting rights, unlike getting a driver’s license.

“How many of the former felons were registered to vote but never voted,” said Kathy Bonnifield, executive director of Citizens for Election Integrity Minnesota, which issued its report on scapegoating felons in November 2010—five months after the rightwingers first raised the spectre of illegal felon voting. “There is a lot of devil in those details.”

The GOP’s Voter Fraud Propaganda War

We must first consider the Right’s devilish messengers and then their dubious details.

John Fund and Hans von Spakovsky are ideologues whose assertions about widespread fraudulent voting have not just been debunked by scholars, but by George W. Bush’s Justice Department itself—where in 2006, von Spakovsky, a lawyer, led the firing of seven U.S. attorneys for not zealously pursuing voter fraud.

The scandalous firings were hardly a federal law enforcement triumph; the full force of the DOJ could only find three-dozen cases in a country where presidential elections see upwards of 130 million voters. (Von Spakovsky was then appointed by Bush to the Federal Election Commission). Between 2002 and 2005 federal prosecutors under von Spakovsky only brought 38 cases of voter fraud nationwide, winning 24 convictions.

Fund, a columnist for the Wall Street Journal and conservative websites, authored a 2004 book about the threat of sloppy election administration and especially voter fraud—which he claims are about people voting illegally or impersonating others at the polls. There is no doubt that elections are complicated and rife with human error, but Fund’s sophistry is to cite isolated problems as indicative of a national crisis, slickly ignoring any sense of scale and pushing ‘solutions’ that help the GOP by targeting perceived Democratic voting blocks.

Von Spakovsky’s vigilantism and Fund’s paranoia are vividly displayed in the contention that Al Franken would not be a sitting U.S. Senator today were it not for illegal voting by former felons that had illegally cast a ballot in November 2008. It is also noteworthy that the source of this conclusion, according to York’s Examiner report, happens to be the Minnesota Majority, whose “method” of identifying felon voters was to compare voter lists with the most rudimentary information in government databases—a methodology that has been trashed by one of the nation’s leading election statistical scholars, Michael McDonald of George Mason University.

“There are solid reasons to suspect that Minnesota Majority has overstated the number of illegal votes,” McDonald writes, asking, “Why is it always the Democratic areas that are investigated?” Going further, he notes that this crew of voting vigilantes does not care about publicly smearing innocent people who were wrongly identified as felons. “I find it distasteful to publicize the names of people in the Minnesota Majority report whose charges were dismissed, perhaps because they were flagged due to the bad luck of having the same name and birth year as a felon.”

“The numbers are a complete lie,” Freeman’s spokesman said before the Hennepin County Attorney came on the phone. “They keep going on television and repeating this lie, even though we debunked this with the work we had to do.”

Their conclusions are consistent with research done by Bonnifield’s group, Citizens for Election Integrity Minnesota, following the 2008 senatorial recount. Her November 2010 report found only 26 voter fraud convictions across the state at that time. They were all ex-felons who registered to vote but never voted (32 percent) or who voted (68 percent) before restoring their voting rights. This distinction is very important because it further debunks the GOP’s voter ID case.

Bonnifield sent a questionnaire to every Minnesota county prosecutor and found not one allegation of voter fraud was prosecutable beyond the issues facing the ex-felons—there was no double voting, underage voting, voter impersonation, coercion of elderly or disabled voters, or non-citizen voting. Instead, 76 percent of the investigations brought no charge.

In other words, York’s assertion, “it’s not just a question of voting by felons,” is bogus. Confusion by ex-felons, one-third of who registered but never voted, is the only issue. Moreover, the numbers cited by York and his sources about the extent of felon voting may be from more elections than just the November 2008 race sparking the recount.

A spokesman for The Minnesota Court Information Office, operated by its Supreme Court, Tuesday said there were 14 voter fraud convictions across the state in 2009, 11 in 2010, and 132 in 2011. The Court records did not say when, or in which election—before 2008, during 2008, or after 2008—the illegal registrations or voting occurred.

In contrast, York arrogantly and erroneously states that 1,099 felons voted illegally in 2008, and that 177 have been convicted, while another 66 are awaiting trial. This 1,099 figure is close to the total number of voter fraud complaints that were submitted and investigated, of which the vast majority were found to be baseless, according to the Hennepin County Attorney, whose office handled the majority of these allegations.

Fund and von Spakovsky contend that county prosecutors chose to ignore the bulk of illegal voting, according to York, because the state’s standards for obtaining convictions are lax. “The accused can get off by claiming not to have known they did anything wrong,” he said, citing their book. “Still, that’s a total of 243 people either convicted of voter fraud or awaiting trial in an election that was decided by 312 votes.”

That is another statement that should make any lawyer cringe—and von Spakovsky, a lawyer, should know better. The issue of criminal intent is a fundamental precept in American justice. It is the rule and not the exception in criminal law that intent must be in evidence to convict someone of violating a law. By glossing over that distinction—a typical Fund move—these provocateurs are seeking to heighten a sense of unfairness among their clan. Ignoring criminal intent has never been a legal standard or even controversial.

Attacking Elections Is Not Patriotic

There are many reasons why the GOP’s voter ID arguments—including this rubbery analysis—are an overreaching solution in search of a barely-existent problem.

In a state where 2.9 million people voted in November 2008, even if there were 243 illegal voters—and that includes people who have not yet been proven guilty—less than one-thousandth of 1 percent of the state’s electorate registered or voted illegally. The GOP’s ‘solution,’ forcing millions of voters to present specific government-issued photo ID to get a ballot, is using a bulldozer to swat a fly.

Moreover, having a photo ID requirement to obtain a ballot would do nothing to end the confusion surrounding ex-felons prematurely registering to vote. They can do that with a driver’s license. If illegal felon voting is in fact a problem, then the solution lies with telling probation officers to better-inform their charges, not new statewide voting rules.

But the myth of voter fraud refuses to die among the GOP. Minnesota’s Republican-led Legislature passed a voter ID law that was vetoed this spring by its Democratic governor. It subsequently put a state constitutional amendment on voter ID on the November 2012 ballot. Secretary of State, Mark Ritchie, a Democrat, has been sued over ballot language, precluding him from commenting on this new attack by right-wingers on the senatorial recount that he oversaw in 2008-2009.

But beyond arguments over voter ID, there is a bigger point. Republicans increasingly have been trying to tilt the rules surrounding all aspects of voting in recent elections—from restricting voter registration drives, to rules validating voter registration applications, to presenting more specific forms of ID to get a ballot, to toughening the rules for counting provisional ballots given to people who lack that ID, to suing afterwards if the vote count is close. All of these tactics are in play in the 2012 presidential election.

Beyond ignoring the facts, the implicit racism in this latest charge may be its most repugnant feature, as many felons are presumed not likely to be white.

The further assumption that felons vote for Democrats and not Republicans should also be disputed. There are a lot of felons in white majority states that vote for Republicans. In Minnite’s book, she cited the 2004 Washington state gubernatorial recount, where the GOP also claimed that felon voting benefitted the winner, Democrat Chris Gregoire.

In that recount litigation, the court found people with felony convictions who had not yet restored their voting rights had voted illegally—because local election officials mailed them ballots. There was no finding of an intent to defraud. In contrast, the court found that the only showing of an intent to fraudulently vote was by four illegal voters who supported the Republican candidate.

If the Republican Right were confident in its candidates and message, they would trust voters to listen and decide, and abide by the outcome. Instead, they are trying to game the rules and cast doubt on the public’s confidence in the process—including the prospect of recounts in swing states this fall. And they consider these activities patriotic.