Chapter 52: The Integrity of American Elections

“When I die, I want to be buried in Louisiana, so I can stay active in politics.”

—Governor Earl Long (1)

 

“There are forces in America that are trying to make it harder, more difficult for people to cast a vote. We must not let that happen.”

—John Lewis (2)

 

The politicians and citizens of any democracy need to be vigilant when it comes to the integrity of the voting process. Elections without integrity produce governments without legitimacy in the peoples’ eyes. Societies with illegitimate governments are justly prone to uprisings and rebellions. Maintaining the integrity of a society’s elections is an investment in social stability and an affirmation that we care about democratic principles. There are many threats to election integrity, but we’ll concentrate on these two: voter fraud and election fraud. (3) We’ll also look at the issue of legal voter suppression.

Voter Fraud

We’ll define voter fraud as a voter intentionally corrupting the electoral process in a way that distorts the “one-person, one-vote” principle. This can take several forms. A college student might try to register and vote in both their college town and their hometown. A person who is not a citizen might try to register and vote. A person might try to pose as a person who has recently died but whose name has not yet been purged from the list of registered voters. A person might sell his vote to another. Voter fraud is a federal crime, punishable by heavy fines and the possibility of jail time. (4) Few people are willing to risk such penalties for the marginally impactful practice of casting an extra vote. While voter fraud may have been fairly common in the nineteenth and early twentieth centuries, it is remarkably uncommon now. Most voter-fraud allegations turn out to be clerical errors and bad data matching—like Edward Gomez in one voting district being mistaken for a different Edward Gomez in another district, when in fact they are two different people in two different locations. Voter-fraud allegations are usually based on hearsay, speculation, and poor investigative techniques.

I Voted Sticker
I Voted Sticker

The issue of voter fraud has been studied extensively and has been found to be a marginal problem at best. In 2007, the Brennan Center for Justice studied elections where there were voter-fraud allegations—and credible allegations of voter fraud are themselves rare—and found that there is a greater chance that an American “will be struck by lightning than that he will impersonate another voter at the polls.” With respect to the oft-alleged situation of non-citizens voting in American elections, the Brennan Center could not find “any documented cases in which individual non-citizens have either intentionally registered to vote or voted while knowing that they were ineligible.” (5) In 2016, a comprehensive study of voter fraud allegations in elections from 2000 to 2012 found exactly ten individual cases of voter impersonation out of the 146,000,000 registered voters in twenty-four federal elections in that time span. (6) When President Trump’s much ballyhooed Presidential Advisory Commission on Election Integrity—which appeared from the outset as though it was intended to conclude that voter fraud was prevalent—quietly folded in 2018, one of its members had to subpoena the commission’s records so that he could unequivocally state that the group “had uncovered no evidence to support claims of widespread voter fraud.” (7)

In the wake of his popular and Electoral College defeat in 2020, President Trump based his attempt to overthrow the election on false claims of voter fraud in states he lost. In Georgia, for example, he railed against alleged fraud surrounding mail-in absentee ballots. A state audit of those ballots could not find a single instance of fraud. The story was the same all across the country. In fact, experts on election security held that the 2020 election was “the most secure in American history” and as smooth as they had ever seen, due primarily to expanded audits and more jurisdictions using machines that produced a paper trail. (8) Ironically, the conservative Heritage Foundation found that “In every listed indictment and conviction for voter fraud or other malfeasance in connection with the 2020 presidential general election, when the culprit’s political affiliation is known he or she turns out to be a Republican or ‘unabashed conservative.'” (9)

Election Fraud

We’ll define election fraud as election officials, campaign staff, advocacy groups, or political candidates intentionally corrupting the electoral process. This happens more often than does voter fraud. According to the Justice Department, “Election fraud usually involves corruption one of three processes: the obtaining and marking of ballots, the counting and certification of election results, or the registration of voters.” (10) The Justice Department lists the following specific activities as prosecutable under federal statutes:

  • Paying voters for registering to vote or for voting.
  • Conspiring to prevent voters from participating in elections. This might take the form of robocalls falsely informing people that the election was cancelled or its date delayed a week.
  • Intimidating voters through physical duress or threats, thereby preventing them from voting or registering to vote. Allegations of this happen in nearly every election.
  • Malfeasance by election officials involving diluting valid ballots with invalid one—e.g., ballot-box stuffing—rendering false tabulations of votes or preventing valid voter registrations.
  • Producing voter registration rolls that qualify alleged voters to vote that the election official knows are incorrect.
  • Keeping under one’s authority armed persons at any polling place unless said actors are active civilian police or military personnel.

What does this look like in practice? A 2018 fraud case out of North Carolina’s Ninth Congressional District election is a good case in point. The race’s outcome had Republican Mark Harris defeating Democrat Dan McCready by only 905 votes. However, officials discovered that Harris had hired a Republican operative named Leslie McCrae Dowless to work on voters who requested absentee ballots. Dowless apparently led a scheme in which his co-conspirators showed up at voters’ doors and collected absentee ballots—which is illegal under North Carolina law—promising the voters that they would turn them in for them. When Catawba College political science professor Michael Bitzer analyzed absentee ballot results in Bladen County—at the heart of the Ninth District—he found that “registered Republicans submitted just 19 percent of absentee ballots that were accepted by the county, compared with 42 percent for Democrats and 39 percent for unaffiliated voters. Yet Harris won 61 percent of mail-in ballots in the county. In every other county in the district, McCready won the absentee ballot vote by a wide margin.” (11) The North Carolina board of elections had to cancel the election and hold a new one. Harris declined to run again, citing health reasons.

Another example? President Donald Trump and his associates unsuccessfully attempted what would have been the most consequential election fraud in American history. Trump personally called the Georgia Secretary of State, Brad Raffensperger, attempted to bully him to endorse any one of several unfounded internet conspiracy theories, and said he needed to “find 11,780 votes” and that “there’s nothing wrong with saying, you know, um, that you’ve recalculated.” Raffensberger resisted this attempt at election fraud and told Trump that “Well Mr. President, the challenge that you have is, the data you have is wrong.” (12) Trump attempted to corrupt the Department of Justice to serve as his political hammer and investigate false claims of election and voter fraud, declare (falsely) that fraud had taken place in the 2020 election, and tell swing state legislators that they should appoint pro-Trump slates of electors even though Trump had lost the vote in those states. (13)

A worry many people have about election fraud has to do with the voting machines themselves. In particular, they are concerned about these machine’s lack of transparency, the privacy of the companies that make them, and the fear that the machines could be hacked or manipulated. When the U.S. regularly used paper ballots that were manually marked by the voter, ballots were typically printed either by state authorities or by private companies whose quality was verified by state authorities. With the advent of electronic voting machines, America turned its election system over to corporations. Just three companies—Election Systems & Software, Dominion Voting Systems, and Hart InterCivic—control the vast majority of the voting machines used all across the United States. (14) Their technology is considered proprietary, and thus not open to scrutiny. The British newspaper The Guardian elegantly put the problem like this:

“The fact is that democracy in the United States is now largely a secretive and privately-run affair conducted out of the public eye with little oversight. The corporations that run every aspect of American elections, from voter registration to casting and counting votes by machine, are subject to limited state and federal regulation. The companies are privately-owned and closely held, making information about ownership and financial stability difficult to obtain. The software source code and hardware design of their systems are kept as trade secrets and therefore difficult to study or investigate.” (15)

The second issue with respect to electronic voting machines is their vulnerability. Because they are proprietary black boxes, it is unclear whether they could be set up to rig elections by their manufacturers or by outside actors. Computer scientists have repeatedly warned that electronic voting machines are vulnerable to hacking. (16) In 2016, Russian hackers attacked voter databases and software systems in thirty-nine states. While there is no evidence that any votes were changed, the ultimate aim of the incursions may have been to cast doubts about the election results’ validity. (17) Fortunately, the 2020 election was very secure because the federal government improved its efforts, and many state and local jurisdictions demanded electronic voting machines that produced a paper ballot that is amenable to audit after the fact.

A potential election fraud threat is built into the very structure of America’s election machinery—namely, the partisan nature of state offices that conduct elections and election boards that certify election results. Ordinary Americans need to be vigilant about this potential threat to the integrity of elections. Each state conducts their elections differently so it’s difficult to generalize. However, typically there is an elected position like a lieutenant governor or secretary of state who is responsible for conducting the election. That person is usually either a Democrat or a Republican. Further, state and local election boards are often staffed by members of the two major parties. The potential issue comes if these people substitute their party interests in place of the will of the voters.

Fortunately, in modern American history most state and local election officials have conducted themselves with integrity. However, it appears as though the Republican party has a growing problem in this regard. In Florida in the 2000 election, secretary of state Katherine Harris, who was the state co-chair of Republican George W. Bush’s campaign, rushed to declare her preferred candidate the winner. In the 2020 election, Tina Peters, the Republican clerk overseeing elections in Mesa County, Colorado—a person who had twice been accused of incompetently running previous elections—became a loud proponent of Donald Trump’s big lie that the election had been stolen from him. Peters went so far as to allow unauthorized people to access Mesa County’s election machines and download data– including passwords—which were then circulated on the Internet. (18) Following Trump’s 2020 narrow defeat in Georgia, Republicans in control of the state legislature there passed legislation that gives it effective control of Georgia’s State Election Board and, in turn, over the local election boards in Democratic strongholds like Fulton County. (19) In Michigan and other states, Republicans replaced local election board members with 2020 “stop the steal” conspiracy theorists and promoted candidates for state election posts with pro-Trump positions. (20) What does this portend for election integrity?

Legal Voter Suppression

Forms of voter suppression exist that are unfortunately legal, unless they can be proven to violate civil rights. These include strict voter identification laws, overly aggressive voter-registration rolls purges, and bureaucratic hurdles to casting a vote.

Allegations of voter fraud—which we’ve seen is not a real problem—are often used as a reason to implement strict voter-identification laws. In principle, there’s nothing wrong with ensuring that the person who is casting a vote is 1) the person they say they are, and is 2) eligible to vote. The question is whether the onus is on the person or on the state. For many years, other countries like France and Sweden have used government resources to automatically register people to vote. In 2016, Oregon became the first state to do so, and there are now sixteen states that also have automatic voter registration. (21)

Other states have gone a different way, requiring potential voters to prove their identification. These are almost always states with Republican majorities in state legislatures and/or Republican governors. As late as 2008, no states had voter identification requirements. (22) Since 2010, fifteen states put more restrictive voter-identification laws in place, twelve states made it more difficult to register to vote and stay registered, and ten states made it more difficult to vote early or absentee. Altogether, thirty-five states have some form of voter-identification requirements. (23) Many states face legal challenges over their voter I.D. laws. The reason? Voter advocacy organizations argue that voter-identification laws are intended to disproportionately hinder groups of voters who are most likely to vote for Democratic candidates: students, poor people, and racial and ethnic minorities. Research has found that “strict ID laws doubled the turnout gap between whites and Latinos in the general elections and almost doubled the white-black turnout gap in primary elections.” (24) In a survey of voters, three times more blacks and Hispanics than whites said they—or someone in their household—lacked the appropriate identification to vote. (25)

Another concerning practice is aggressive state-voter-registration-roll purges. This practice first came to widespread attention during the 2000 presidential race in Florida. When the Supreme Court stopped the recounts, George W. Bush led Al Gore by 537 votes. What most people don’t realize is that prior to the election, Florida’s Republican Secretary of State Katherine Harris—who also served as Bush’s campaign state co-chair—oversaw a purge of Florida’s voter rolls that used a company with strong Republican ties and that erroneously removed thousands of Democratic leaning voters. The list of purged voters was so flawed that the Madison County elections supervisor was surprised to find her name on it as a convicted felon. A U.S. Commission on Civil Rights analysis found that the list had at least a 14 percent error rate. (26)

With this successful Florida experience, Republicans turned to purging voter rolls as an election strategy. When it is employed, this strategy always hides under the legitimate interest that states have of keeping their voter rolls accurate. But if the effort is overly aggressive in a way that targets people who are likely to vote Democratic, then it serves an evil purpose. Typically, these efforts go hand in hand with hyped voter-fraud allegations. As political journalist Ari Berman, who has extensively studied this issue, writes, “The 2000 election in Florida forever changed American politics and kicked off a new wave of GOP-led voter disenfranchisement efforts. . . Bush’s election empowered a new generation of voting-rights critics, who hyped the threat of voter fraud in order to restrict access to the ballot.” (27) In 2018, this strategy worked to perfection in Georgia’s gubernatorial election. Brian Kemp, Georgia’s Secretary of State and Republican candidate for governor, purged more than half a million names from Georgia’s voting rolls for not having voted in prior elections—the stated assumption being that they had died or moved away. A study by American Public Media found that over 100,000 of these people were erroneously removed from the voter rolls. When people tried to register, their applications were put on hold due to a strict “exact match” policy that “held up 53,000 pending registrations, mostly of people of color, many over small typos, like a missing apostrophe or hyphen.” (28) Kemp won the election by less than 55,000 votes. Georgia has continued to purge additional voters, and has been joined by Ohio, Wisconsin, and Oklahoma.

Many states erect unnecessary bureaucratic hurdles that serve no election security function, but make it difficult for people to cast their ballots. Two important hurdles include shortening the hours when polls are open and closing polling places altogether. After the Supreme Court’s Shelby County v. Holder (2013) decision to set aside pre-clearance requirements, Southern states closed nearly 1,200 polling places, leaving some counties with only one place to cast a vote. Often, polling places were closed in poorer and more urban areas, resulting in long lines to vote. Having to wait six to ten hours in order to cast a vote is a completely unnecessary hoop that deprives the voter of time they would spend with their families or opportunity to work. As such, it has the functional effect of acting like a poll tax, which the 24th Amendment officially outlawed. (29)

Following the 2020 election, Republican state governments passed a variety of laws designed to make voting more difficult. The Brennan Center tallied 30 such laws in 18 states within 9 months of the election, with particularly aggressive examples in Florida, Georgia, Iowa, Arizona, Arkansas, and Montana. These laws close polling places, limit hours, restrict absentee balloting, curtail registration and voting times, limit ballot drop boxes, and other measures. Other states, particularly those controlled by Democrats or where the parties are fairly evenly split, passed measures to expand voting access. (30)

What If. . . ?

What if all adult citizens had a positive right to vote? What if the federal government was charged with ensuring that all people were accurately registered to vote in the district in which they lived? What if this responsibility were explicitly given to federal civil servants instead of state-level partisan politicians?

References

  1. Justin Levitt, The Truth About Voter FraudBrennan Center for Justiceat New York University. 2007. Page 3.
  2. Ari Berman, Give us the Ballot. The Modern Struggle for Voting Rights in America. New York: Farrar, Straus, and Giroux, 2015. Page 269.
  3. The definitions below draw on Gail Ablow, “Voter Fraud, Explained,” Bill Moyers. June 24, 2016.
  4. Richard C. Pilger, editor, Federal Prosecution of Election Offenses, Eighth Edition. U.S. Department of Justice. December, 2017. Pages 23-26.
  5. Justin Levitt, The Truth About Voter FraudBrennan Center for Justiceat New York University. 2007. Page 4 and page 18.
  6. Sami Edge and Sean Holstege, “Voter Fraud is Not a Persistent Problem,” News21. August 20, 2016.
  7. Statementon August 3, 2018, from Maine Secretary of State Matthew Dunlap. Van R. Newkirk II, “The Trump Voter Fraud Commission’s Data Problem,” The Atlantic. September 12, 2017.
  8. Mark Niesse, “No Fraud: Georgia Audit Confirms Authenticity of Absentee Ballots,” Atlanta Journal Constitution. December 29, 2020. Pam Fessler, “Former Election Security Official Says It Will Take ‘Years’ to Undo Disinformation,” National Public Radio. December 22, 2020.
  9. Dennis Aftergut, “The Pattern of GOP Voter Fraud,” The Bulwark. November 18, 2021.
  10. Richard C. Pilger, editor, Federal Prosecution of Election Offenses, Eighth Edition. U.S. Department of Justice. December, 2017. Page 2. List of offenses on pages 23-26.
  11. Pema Levy, “Republicans Finally Have an Election Fraud Scandal. And None of Them Want to Talk About It,” Mother Jones. December 4, 2018.
  12. No Author, “Read the Full Transcript and Listen to Trump’s Audio Call with Georgia Secretary of State,” CNN. January 3, 2021.
  13. Senate Judiciary Committee, How the Former President and His Allies Pressured DOJ to Overturn the 2020 Election. October 7 2021.
  14. Pam Fessler and Johnny Kaufman, “Trips to Vegas and Chocolate-Covered Pretzels: Election Vendors Come Under Scrutiny,” NPR’s Morning Edition. May 2, 2019.
  15. Jordan Wilkie, “’They Think They’re Above the Law’: The Firms That Own America’s Voting System,” The Guardian. April 23, 2019.
  16. Ben Wofford, “How to Hack an Election in 7 Minutes,” Politico. August 5, 2016. Alex Hern, “Kids at Hacking Conference Show How Easily US Elections Could Be Sabotaged,” The Guardian. August 22, 2018. A.J. Vicens, “Researchers Assembled Over 100 Voting Machines. Hackers Broke Into Every Single One,” Mother Jones. September 27, 2019.
  17. Michael Riley and Jordan Robertson, “Russian Hacks on U.S. Voting System Wider Than Previously Known,” Bloomberg News. June 13, 2017.
  18. Bente Birkeland, “Voting Data From a Colorado County Was Leaked Online. Now the Clerk is in Hiding,” NPR’s Morning Edition. September 3, 2021.
  19. Tessa Stuart, “Republicans Plot Elections Takeover in One of Georgia’s Most Democratic Counties,” Rolling Stone. September 28, 2021.
  20. Sam Levine, “Why are Michigan Republicans Quietly Replacing Key Election Officials?” The Guardian. October 14, 2021.
  21. Unknown Author, “Automatic Registration, A Summary,” Brennan Center for Justiceat New York University. July 10, 2019.
  22. Zoltan Hajnal, Nazita Lajevardi, and Lindsay Nielsen, “Voter Identification Laws and the Suppression of Minority Votes,” unpublished manuscript. Page 5.
  23. Unknown Author, “New Voting Restrictions in America,” Brennan Center for Justice at New York University. November 18, 2019.
  24. Vann R. Newkirk II, “How Voter ID Laws Discriminate,” The Atlantic. February 18, 2017. See also Issie Lapowsky, “A Dead-Simple Algorithm Reveals the True Toll of Voter ID Laws,” Wired. January 1, 2018.
  25. Vann R. Newkirk II, “Voter Suppression is Warping Democracy,” The Atlantic. July 17, 2018.
  26. Gregory Palast, “Florida’s Flawed ‘Voter Cleansing’ Program,” Salon. December 4, 2000. Katie Sanders, “Florida Voters Mistakenly Purged in 2000,” Tampa Bay Times. June 14, 2012. U.S. Commission on Civil Rights, Voting Irregularities in Florida During the 2000 Presidential ElectionJune, 2001.
  27. Ari Berman, “How the 2000 Election in Florida Led to a New Wave of Voter Disenfranchisement,” The Nation. July 28, 2015.
  28. Angela Caputo, Geoff Hing, and Johnny Kaufmann, “After the Purge: How a Massive Voter Purge in Georgia Affected the 2018 Election,” American Public Media. October 29, 2019.
  29. Andy Sullivan, “Southern U.S. States Have Closed 1,200 Polling Places in Recent Years: Rights Group,” Reuters.  September 9, 2019. Adam Eichen, “Long Voting Lines are a Poll Tax,” Jacobin. November 3, 2020.
  30. No Author, “Voting Laws Roundup, July 2021” The Brennan Center for Justice. July 22, 2021.

 

 

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