By: Robert Bryson

This post will be the second in a five-part series examining “voter fraud,” its impact on elections, steps taken to curb it, and it will end with an analysis of Husted v. A. Philip Randolph Institute which is the Supreme Court case scheduled for arguments January 10, 2018 that will determine if Ohio can use voter inactivity to send confirmation notices to that voter under the National Voter Registration Act of 1993 and the Help America Vote Act of 2002 (e.g. if Ohio can purge its voter lists).[1]  

Part Two will provide background information for what will ultimately be a cost-benefit analysis. Essentially, do the benefits of imposing voter identification and other similar laws outweigh the cost of excluding legitimate citizens from exercising their right to vote?

What is voter fraud?

Voter fraud means many different things depending on where you are from. If you lived in Zimbabwe under former dictator Mugabe, voter fraud meant voter intimidation, ballot stuffing, and electoral manipulation[2]. If you live in the United States, voter fraud is typically expressed as registering to vote in multiple districts, impersonating another voter, voting more that once in the same election, and providing false information to election officials.[3]

Voter fraud can occur “top-down,” meaning from the government onto the people (as is the case in many dictatorships), it can also occur “bottom-up,” such as voter intimidation, ballot stuffing, voter impersonation, and voting in multiple districts. A notable example of “bottom-up” fraud is Tammany Hall[4] which operated New York City and State from the 18th to 20th centuries.

Rates of Voter Fraud

Every credible study of the past twenty years agrees that fears of voter fraud are overblown, most instances of “fraud” can be attributed to clerical and measurement errors. The Brennan Center for Justice at the New York University School of Law concluded an exhaustive review of investigations, studies, commissions, assessments, books, task forces, analyses, and opinions from 2002 to 2017[5]. Their sources in their entirety can be found in footnote 5.

Academic Studies: No Fraud

The Brennan Center reported on voter fraud in The Truth About Voter Fraud and found incident rates between 0.0003 percent and 0.0025 percent.[6] The Brennan Center’s findings demonstrate that voter fraud is incredibly rare and barely warrants a mention, let alone laws to “protect” the integrity of the vote. Moreover, a 2014 Washington Post study found 31 credible instances of impersonation fraud[7] out of more than 1 billion votes cast.[8] The authors further note that the “31 credible instances” is likely inflated because it included “any and all credible claims” not just prosecutions or convictions.[9]  Two studies conducted by Arizona State University found 10 cases of voter impersonation fraud from 2000 to 2012.[10] The follow-up study focused on states where politicians have argued that fraud is pervasive and found zero successful prosecutions for impersonation fraud.[11]

Court Rulings: No Fraud

Additionally, it isn’t just reports that conclude voter fraud is a myth. The Fifth Circuit struck down a Texas photo ID law as discriminatory because the State could only cite “two convictions for in-person voter impersonation fraud out of 20 million votes case in the decade” before Texas passed the law.[12] The Fourth Circuit took similar umbrage with North Carolina’s omnibus restrictive election law as purposefully racially discriminatory.[13]

Government Investigations: No Fraud

Finally, government efforts (even by those in favor of vote suppression laws) are unable to find wide-ranging instances of voter fraud. The Department of Justice investigated instances of voter fraud and was able to prove that 0.00000013 percent of ballots cast from 2002 to 2004 in federal elections were fraudulent. Furthermore, even Kris Kobach[14] as the Kansas Secretary of State successfully secured enhanced powers to investigate and prosecute voter fraud (the only Secretary of State granted this authority) by arguing that he had evidence of 100 such cases. However, he was able to bring only six cases of which four were successful.

Concluding Thoughts

I could cite example after example, in fact many reports do, of the non-existent or negligent rates of voter fraud in U.S. elections. Voter fraud is not a threat to the integrity of our elections. But, voter suppression laws are a threat. A natural bulwark to voter fraud is to increase turnout (the more people vote, the harder it is for a few unscrupulous characters to effect it). Unfortunately, instead of embracing this easy solution, many states have opted to suppress the vote, trampling the rights of American citizens as they fight the election-equivalent of the boogeyman.

[1] http://www.scotusblog.com/case-files/cases/husted-v-philip-randolph-institute/

[2] We won’t address extreme gerrymandering as a type of “electoral manipulation” in this series.

[3] https://www.washingtonpost.com/news/wonk/wp/2014/08/06/a-comprehensive-investigation-of-voter-impersonation-finds-31-credible-incidents-out-of-one-billion-ballots-cast/?utm_term=.34582b065fa0

[4] If you are interested in learning more about Tammany Hall, this Wikipedia page is very well-researched and annotated, https://en.wikipedia.org/wiki/Tammany_Hall, it is a good place to start.

[5] https://www.brennancenter.org/analysis/debunking-voter-fraud-myth

[6] https://www.brennancenter.org/publication/truth-about-voter-fraud

[7] When a person pretends to be another person and votes, the type of fraud that voter identification and other similar laws are designed to prevent.

[8] https://www.washingtonpost.com/news/wonk/wp/2014/08/06/a-comprehensive-investigation-of-voter-impersonation-finds-31-credible-incidents-out-of-one-billion-ballots-cast/?utm_term=.402c9e68ed65

[9] Id.

[10] https://votingrights.news21.com/article/election-fraud/

[11] https://votingwars.news21.com/voter-fraud-is-not-a-persistent-problem/

[12] https://www.brennancenter.org/sites/default/files/legal-work/2016.07.20_En%20Banc%20Opinion.pdf

[13] http://electionlawblog.org/wp-content/uploads/nc-4th.pdf

[14] Yes, you have heard of him, he is the head of the Advisory Committee on Election Integrity. https://www.washingtonpost.com/opinions/kris-kobach-is-the-real-fraud/2017/09/14/4ed61458-98b0-11e7-82e4-f1076f6d6152_story.html