Conceptual clarity is important in evaluating evidence of fraud. We begin with a discussion of what voter fraud is and what it is not. The first problem in defining voter fraud is that as a crime, it defies precise legal meaning. In fact, there is no single accepted legal definition of voter fraud. In fact, some states do not actually criminalize ‘voter fraud,’ although they all criminalize acts that are commonly lumped together under the term, such as illegal voting, providing false information to register to vote, and multiple voting.
The legal incoherence contributes to popular misunderstandings. We need a basic definition of voter fraud that cuts through the confusion without violating the way voter fraud is diversely treated in state and federal law. We can start with the United States Department of Justice’s definition of election fraud and apply it to election crimes committed by voters. The Justice Department defines election fraud as “conduct that corrupts the process by which ballots are obtained, marked, or tabulated; the process by which election results are canvassed and certified; or the process by which voters are registered.” Voter fraud is a sub-category of election fraud, or the intentional corruption of the electoral process by voters.
This covers knowingly and willingly giving false information to establish voter eligibility, and knowingly and willingly voting illegally or participating in a conspiracy to encourage illegal voting by others. Apparent acts of fraud that result from voter mistakes or isolated individual wrongdoing or mischief making not aimed at corrupting the voting process should not be considered fraud, though sometimes these acts are prosecuted as such. All other forms of corruption of the electoral process and corruption committed by elected or election officials, candidates, party organizations, advocacy groups or campaign workers fall under the wider definition of election fraud.
How prevalent is voter fraud? A 2005 United States Senate Republican Policy Committee report claimed that “voter fraud continues to plague our nation’s federal elections, diluting and canceling out the lawful votes of the vast majority of Americans”. This would be shocking if it were true. But the Committee made it without providing a single piece of evidence to support or clarify the claim. It cited no surveys, no statistics, no studies, no credible evidence whatsoever to back up its warning that election results are routinely distorted by fraud in the United States.
The Committee cited no data because there is very little to cite. Evidence of voter fraud like evidence of other forms of criminal behaviour is primarily produced by law enforcement efforts to detect and prosecute it. And the available evidence here suggests that voters rarely commit voter fraud. As in the case of all other kinds of crime, it is simply unacceptable to allege law breaking without providing at least some supporting evidence.
What is that evidence? At the national level, a major new project at the United States Department of Justice, the Ballot Access and Voting Integrity Initiative (BAVii) has resulted in only a handful of convictions. According to the Attorney General, since the inception of the program in 2002, “we’ve made enforcement of election fraud and corruption offences a top priority.” The result? Government records show that only few people were convicted of or pleaded guilty to illegal voting.
The available state-level evidence of voter fraud, culled from interviews, reviews of newspaper coverage and court proceedings, while not definitive, is also negligible. There are no reliable, officially compiled, national or even statewide statistics on voter fraud. Even though many criminal acts associated with “voter fraud” are classified as felonies, voter fraud fails to appear in the INTERPOL and F.B.I.’s uniform crime reports. There are no publicly available criminal justice databases that include voter fraud as a category of crime. No states collect and publish statistics on voter fraud.
If fraud is such a persistent concern of those who run elections, government agencies responsible for election administration should collect statistics on it, as they do in other serious matters, certainly other crimes. It is not as if the states have failed to detail the ways voters could corrupt elections. There are hundreds of examples drawn from state election codes and constitutions that illustrate the precision with which the states have criminalized voter and election fraud.
If we use the same standards for judging voter fraud crime rates as we do for other crimes, which is to calculate the incidence of crime from law enforcement statistics on arrests, indictments and convictions, we must conclude that the lack of evidence of arrests, indictments or convictions for any of the practices defined as voter fraud means very little fraud is being committed relative to the millions of votes cast each year in state, local and federal elections.
Even if crime reports underestimate true crime rates because some crimes go unreported or undetected, or because criminal behaviour is sometimes addressed by means other than prosecution, crime is still measured as a function of law enforcement efforts to address it. Under the rule of law, enforcement efforts establish the core evidence of crime. It is difficult to conceive of whole categories of criminal behaviour that go almost completely undetected or ignored by law enforcement officials at all levels of government across the countries today. And yet, those who believe there is a lot of voter fraud despite the lack of evidence frequently fall back on this argument. When confronted they charge the paucity of evidence is due to the government’s failure to undertake the investigations and prosecutions that would produce it. A more plausible explanation is that voters are not committing fraud, leaving little to investigate or prosecute.
Some argue that local officials are ill-equipped to detect voter fraud and poorly motivated to pursue investigations and prosecutions of voter fraud given their lack of expertise and resources and the public’s demand for attention to more serious or violent crimes. If election crime, perhaps like international securities fraud or organized crime, were beyond the ken of local officials to investigate, then we might expect a dearth of prosecutions and little evidence of voter fraud. This is another explanation offered by those who argue that there is a lot of fraud despite the lack of evidence. Local officials, the argument goes, can’t or won’t prosecute fraud for a variety of reasons. The detection and prosecution of voter fraud, however, is not beyond the ken of local officials. In fact, as the Justice Department manual on how to investigate and prosecute election crime argues, “there are several reasons why election crime prosecutions may present an easier means of obtaining convictions than do other forms of public corruption.” They are, 1) “election crimes usually occur largely in public,” 2) “election crimes often involve many players,” and 3) “election crimes tend to leave a paper trail.” Without any evidence to support it, the notion that local law enforcement officials are unable or unwilling to investigate or prosecute voter fraud lacks merit. But, as the saying goes, if you repeat a rumour enough times people will start to believe it.
Voting is a right, it’s not a gift and it’s not a privilege. Moreover, we can’t have a democracy without the voters, and that means all voters, contributing to self-government. Therefore, layers upon layers of rules and bureaucracy to administer elections do not serve us well if they hinder electoral participation, which they do especially when the electorate expands. It is simply naive to argue that the rules have nothing to do with turnout. On the other hand, it’s true, the rules don’t on their own increase turnout – issues, passion, competition, good candidates, effective communication and a diverse media – these are some of the factors that contribute to higher levels of electoral participation. But high interest campaigns and elections present precisely those conditions under which a complex regime of rules will have a depressing effect. When voter interest is high, partisans exploit the rules to determine the size and shape of the electorate they want.
Today partisans use the threat of voter fraud as an intimidation tactic. As our history shows, it is an old and reliable instrument for shaping the electorate by influencing the rules and procedures governing access to the vote. It is difficult to openly suppress voting in a democratic culture. The threat of fraud, however, if it’s real, is enough to scare most people into accepting new rules that undermine the electoral participation of other voters – the unfortunate price, we are told, we must pay to keep our elections clean. The unraveling logic of this argument should be obvious. Unfortunately, reason flies out the window when we’re scared.
We need better data, better election administration, transparency and more responsible journalism to improve public understanding of the legitimate ways in which electoral outcomes can be distorted and manipulated. Specifically:
1. states’ chief elections officers should collect and maintain data on fraud allegations and enforcement activities and routinely report this information to the public. The data and methods used to collect it should be transparent and in the public domain.
2. To protect the right to vote and improve public confidence in the electoral process improvements to statewide, centralized voter registration databases must continue. Accurate registration records and methods for instantaneously certifying voter eligibility are the best defense against voter fraud.
3. To minimize mistakes, clerical errors, and duplication, state and local elections officials need to develop good, cooperative working partnerships that do a service to democracy by encouraging more people to register and vote.
4. States can go further and reduce the need for registration drives by fully implementing the same-day voter registration procedures. Ultimately, the states and federal government should provide a means to automatic universal voter registration.
5. To improve public understanding of voter fraud and more balanced reporting, state elections and law enforcement officials should educate journalists to ask for and recognize evidence of fraud when reporting on fraud allegations.
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