Voting procedures have rarely been a theme of election news coverage. This year is an exception. COVID-19 threatens to disrupt ballot access, creating the need to expand early voting and mail-in voting.
Despite polls showing that a majority of Republicans, Democrats, and independents alike support such measures, many officials — nearly all of whom are Republicans — have opposed taking these steps. The most vocal is President Donald Trump. In a tweet last week, Trump wrote: “Mail-In Voting . . . will lead to the most CORRUPT ELECTION in our Nation’s History! #RIGGEDELECTION.”
Voter fraud is a legitimate concern. It’s rampant in some countries and, when it occurs, it’s destructive. But it’s exceedingly rare in the United States. After the 2016 election, the New York Times queried state election officials across the country about voter fraud. No state said that fraud had been widespread and 26 states reported no instances of it. In an attempt to show that voter fraud was widespread, Texas’ Republican attorney general launched an exhaustive investigation and found only two prosecutable instances of it — this in a state where 9 million voters go to the polls. Kansas’ Republican secretary of state sought to prosecute illegal voters, scouring the state’s nearly 2 million registered voters looking for culprits. He ended up with a mere handful, which a judge concluded were “explained by administrative error, confusion or mistake.”
There’s no mystery as to why voter fraud is rare. It is difficult enough to get eligible voters to the polls, much less to get those who are ineligible to knowingly take the risk. The penalty for illegal voting can be high — as much as a $10,000 fine and five years in prison in some states, and the incentive is low — the probability that a single vote will change the outcome of a national or statewide election is virtually zero. The odds of an individual being hit by lightning is 40 times greater than the likelihood that individual will commit voter fraud.
The rarity of voter fraud did not prevent Trump from claiming that unauthorized immigrants had cost him a popular vote victory in 2016. “In addition to winning the Electoral College in a landslide,” he tweeted, “I won the popular vote if you deduct the millions of people who voted illegally.” Trump’s claim doesn’t stand up to a moment’s thought. Unauthorized immigrants often go to great lengths to avoid detection for fear of deportation. It’s hard to imagine a worse place for millions of them to try to hide out than at the nation’s polling stations on Election Day.
Nevertheless, there is a reasonable concern about massively expanding mail-in voting: the capacity of states and localities to provide it. It’s facile to say that some states already do it and that others can simply follow their lead. It’s true that five states — Colorado, Hawaii, Oregon, Utah and Washington — rely mostly on mail-in balloting. It’s also true that an additional 28 states allow “no-excuse” voting by mail, meaning voters aren’t required to provide a reason for not voting in person. But it’s true, as well, that all of these states had the luxury of time in preparing to institute their mail-ballot procedures.
Time is running short for a massive expansion of mail-in balloting, and states and localities are short of cash. Early in the pandemic, Congress allocated $400 million to the states for this purpose. But it was only a tenth of what states are projected to need, according to an analysis by the Brennan Center for Justice. The best, and perhaps last chance, for significant additional funding is the COVID-19 spending package that’s now working its way through Congress. Yet it’s unclear whether such a provision would survive the Republican-controlled Senate or, if it did, that Trump would sign the bill.
If states were to greatly expand their mail-balloting option, risks will remain, though the risks do not include some of the possibilities that have attracted substantial news coverage. Given the decentralized nature of America’s voting procedures, which include within-state variation in the form of the ballot, Russia would find it nearly impossible to rig mail ballots. The risk from Russia is disinformation and, possibly though improbably, the hacking of voting systems. Individual-level fraud is also not a major concern. Any attempt to organize it at a large scale would be easily detected and dealt with. And there are plenty of safeguards for blunting such efforts by single individuals, including signature matching, bar codes, and post-election audits of mail-in ballots.
A major risk — and this is an area where journalists should focus their attention — will come from overwhelmed or non-compliant election officials. A massive increase in mail balloting would tax the capacity of some election clerks and invite mischief by those determined to tip the balance by slowing the process. We saw this in several states during the presidential primaries when tens of thousands of voters never received their requested mail ballot or received it too late to cast it.
The other major risk — and another one for journalists to watch — is that mail balloting will be conducted in a way that hurts minorities and poor people. They are less likely than other Americans to be aware of the option, and some states and localities make no effort to alert them to it. If the provision for mail balloting then becomes a pretext for cutting back on in-person polling places in their residential areas, their ballot access will shrink.
These are real problems and, make no mistake, they will surface in the months ahead. Journalists need to bring them to light as a means of reducing them. Many federal district court judges can also be expected to side with those who are being denied ballot access. But don’t expect help from the U.S. Supreme Court. In nearly every case that’s come before the Supreme Court, it has upheld voter suppression efforts, a subject that will be discussed in next week’s column.
Thomas E. Patterson is Bradlee Professor of Government & the Press at Harvard’s Kennedy School and author of the recently published Is the Republican Party Destroying Itself? Journalist’s Resource plans to post a new installment of his Election Beat 2020 series every week leading up to the 2020 U.S. election.
Benjamin Highton, “Voter Identification Laws and Turnout in the United States,” Annual Review of Political Science 20 (2017): 149-167.
Justin Levitt, “The Truth About Voter Fraud,” Brennan Center for Justice, November 9, 2007.
R. Michael Alvarez, Ines Levin, and J. Andrew Sinclair, “Making Voting Easier,” Political Research Quarterly 65(2012):248-262.
Wendy R. Weiser, “To Protect Democracy, Expand Vote by Mail,” Brennan Center for Justice, June 30, 2020.