After President-elect Donald Trump made the false claim, in late November, that “millions of people” had voted illegally for Hillary Clinton, I asked Richard L. Hasen to talk about the myths and realities of voter fraud.
Hasen, chancellor’s professor of law and political science at the University of California, Irvine, is a leading expert on U.S. election law. He runs the Election Law Blog and is the author of “The Voting Wars” and “Plutocrats United: Campaign Money, the Supreme Court and the Distortion of American Elections.”
Wilkinson: The entire issue of voter fraud is based on assumptions, isn’t it? Many conservatives assume, without evidence, that fraud is widespread. Liberals counter with the assumption that since evidence doesn’t exist, fraud doesn’t either. How can you be sure that one assumption is superior to the other?
Hasen: I disagree with the premise of your question. Thoughtful people who have studied this issue (whether liberal or conservative) know that voter fraud is a real but very rare phenomenon. We do see occasional prosecutions for voter fraud, which usually involves the sale or theft of absentee ballots. People go to jail for this, as they do sometimes for voting in two jurisdictions (double voting).
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However, cases of voter impersonation fraud, where one person goes to the polling place claiming to be someone else, are extremely rare. This is the kind of fraud that President-elect Trump talked about in the run-up to the election, speaking of people voting five, 10 or 15 times without detection.
How do we know impersonation fraud doesn’t exist in large numbers? To begin with, it would be an exceedingly dumb way to try to steal an election.
Trump was ahead of Clinton by about 47,000 votes in Pennsylvania, according to a recent count. Let’s go back in time and say we wanted to flip this election. We would have had to find more than 4,700 people who each would have had to vote 10 times or more in Pennsylvania. We would have had to give them the names of more than 47,000 people who were listed on the voting rolls but were not going to show up to vote. And we would have had to pay those 4,700 people to vote even though we wouldn’t be able to verify that they did, thanks to the secret ballot.
Finally, all of them would have had to be silent about this. No word could get out. When you consider the level of difficulty it entails, you quickly realize that the entire idea is absurd.
We know other types of attempts at election fraud are not perfect crimes. People are caught each election somewhere in the country committing absentee fraud or trying to vote twice (although not five, 10 or 15 times). Yet, at least since the 1980s, there are no examples of attempts or conspiracies to steal an election through impersonation fraud. We have only rare, isolated instances committed by individuals.
As to the idea, floated by President-elect Trump, that millions of non-citizens illegally voted, this, too, is an assertion based on no evidence. We know that Kansas Secretary of State Kris Kobach, who supposedly suggested this notion to Trump, has been given power to investigate and prosecute non-citizen voting in his state, which he claims is an epidemic. He has found virtually nothing. So either the world’s greatest criminal masterminds are devoted to voter fraud (although the criminals still aren’t good enough to alter results even in close states such as Michigan or Wisconsin). Or we have a fictitious problem being raised for partisan reasons.
Wilkinson: The issue of voter fraud emerged in a big way around the time that Republicans concluded they were facing an increasingly steep demographic disadvantage. Is this consistent with history? Or have there been periods in American history when cries of voter fraud were based on something more authentic than one party’s immediate political needs?
Hasen: There have been periods in American history when voter fraud was more of a problem, but it really started to fade in the middle of the 20th century. Now, American elections are about as clean as they have ever been. But trying to manipulate voting rules for partisan advantage is about as old as the republic, and likely to continue.
Certainly in the last decade and a half, Republicans have amped up cries of voter fraud in an effort to pass a range of restrictive registration and voting laws (not just voter ID laws). As I argue in “The Voting Wars,” after the razor-thin 2000 presidential election in Florida the parties recognized that in very close elections, the rules of the game can really matter.
Wilkinson: Many people, myself included, expect another round of GOP efforts to make voting more difficult for Democratic constituencies — at the state and even federal levels. Do you see evidence of that taking shape? What actions could the new Republican Congress take?
Hasen: I believe this is happening and going to happen more on the state and local level. Reporter Ari Berman of the Nation has been tracking it. So far courts have a mixed record in policing the worst overreaches, but with a new conservative Supreme Court, the role of courts as a judicial backstop for protecting voting rights could be diminished.
There is much mischief that Congress could do, assuming they can somehow get around or eliminate the Senate filibuster. Congress could repeal or curtail important legislation, including the Voting Rights Act, the National Voter Registration Act (commonly known as “Motor Voter” because it enabled citizens to register to vote at state departments of motor vehicles), and the Help America Vote Act.
One likely target would be an NVRA provision that requires states, such as Kansas and Arizona, to accept voter registrations submitted using a “federal form” for registration, even when voters do not provide documentary proof of citizenship as state laws may require. If that provision falls, expect more Republican states to require voters to show their papers before they can register to vote or make changes to voter registrations.
Wilkinson: Is there any way to accurately gauge the impact of restrictions on registration and voting on the actual vote? For example, when you look at Trump’s narrow victory margin in Wisconsin in the context of the voting restrictions previously imposed in the state, can you draw any specific conclusions?
Hasen: As I’ve written, Democrats blame voter suppression for Clinton’s loss at their peril. PolitiFact has debunked the claim that 300,000 people were turned away in Wisconsin for lacking the right form of identification to vote.
I also think asking whether restrictive laws affected specific election outcomes is the wrong question. The right question is this: Why should the government make it harder for people to register and vote without offering a good reason for doing so?
Wisconsin cannot show that its law is necessary to prevent fraud or to promote voter confidence. The law is all about politics. It’s intended to advantage Republicans, rile up the Republican base and delegitimize Democratic wins by yelling “voter fraud” in close elections. Leaked GOP documents reveal that Republican operatives in Wisconsin did exactly that in a 2011 state supreme court race.
Wilkinson: Are we destined to years of increasingly aggressive efforts to curtail voting under the guise of combating “fraud”?
Hasen: I think much of the answer will be political. In North Carolina there was blowback and political organizing in opposition to the overreach. Now there will be a Democratic governor who will be able to appoint additional members to boards of elections and a state Supreme Court with a majority of Democratic judges. (That is, unless the North Carolina legislature uses its special session to engage in shenanigans to pack the court or change the rules for appointments to boards of elections.) Such political corrections will be possible in other states as well — but not all of them.
Ultimately, we need to rely on the courts. So long as there are fair-minded judges from both sides of the partisan divide, I think courts will continue to form a backstop against some of the more egregious attempts to undermine the right to vote.
(After this interview, a special session of the North Carolina legislature did in fact change the election rules. Hasen has suggested the move could be illegal.)