It won't find anything serious because voter fraud is a myth, but that doesn't mean the investigation won't be used to make it harder for people to vote in 2020.
President Donald Trump smiling. (AP Photo/Susan Walsh)
The specter of voter fraud has loomed large in America from the very start: George Washington probably won his first election to Virginia's House of Burgesses in 1758 by getting a bunch of neighbors wasted. For many years, candidates would routinely game the electoral process, especially after deeply corrupt political machines took over city governments in the 19th century. As recently as 1960, when John F. Kennedy eked out a win over Richard Nixon possibly thanks to some scheming on his behalf by Democratic allies in Texas and Illinois, it was far from crazy to worry about the integrity of national elections.
But in the past few decades, almost every expert in the field will tell you, actual voter fraud has become vanishingly rare. There are isolated cases of election-related crimes, but these mostly affect minor local elections and often aren't even successful. There are still problems with American elections, but fraud is pretty low on the list.
Donald Trump, of course, thinks otherwise.
Republicans for years have been talking up an alleged (read: nonexistent) deluge of voter fraud as a precursor to enacting voter ID laws that make it harder for many people—in particular poor people and minorities—to cast ballots. But Trump's fixation on the issue is, as most things are with the 45th president, deeply personal. Upset that he earned about 3 million fewer votes than Hillary Clinton, he tweeted weeks after locking up the Electoral College that people (probably undocumented immigrants) were gumming up the works:
There's no evidence that there were "millions of people who voted illegally," and Trump has failed to provide any even as the White House sticks by that absurd claim. But because he's the president, America is about to spend money on this made-up issue.
Trump signed an executive order Thursday establishing a commission to look into alleged voter fraud and broader vulnerabilities in the system. It's tempting to write the whole thing off as a joke given the facts at play, but could this probe actually do harm to the country? Or make it easier for Trump to hold onto power?
For some perspective on how ugly this could get, I called up Rick Hasen, a law professor at UC-Irvine who runs the Election Law blog and is probably the preeminent expert on election-related legal issues in the United States. Here's what we talked about.
VICE: What evidence do you know of that there was fraud of any kind in the 2016 election?
Rick Hasen: Well, we know there was a little bit of fraud—a minuscule amount of fraud—so far that's been detected by election officials. The Brennan Center put together a report on all of the incidents around the country. And to be sure those undercount the actual instances of voter fraud because not everyone is going to be caught.
But there's no evidence of any kind of massive fraud affecting any state holding presidential elections. Nothing like the kind of wild and unsubstantiated that the president put forward that there were 3 million or more noncitizen voters voting in the election.
We're finding handfuls of voters, claims of at most a few dozen in some states. And some of those claims will not pan out once they're investigated. Sometimes someone's flagged as a noncitizen when in fact they're a citizen, or they're flagged as voting when in fact they didn't vote. So it takes a while to ferret these out. It's easy to make accusations, but I suspect we will not find many more cases of fraud in the 2016 election. And what we have found I would say could be fairly described as miniscule.
What would constitute genuinely worrisome fraud?
The most important metric is: Does it call the vote anywhere into question? That is a threshold, and it does not appear—we're not even in the same ballpark in terms of that. I've not seen any even significant fraud, any massive fraud, any appreciable fraud beyond a minuscule amount when you look at the scale of voting in the United States. Which is not surprising given how large a conspiracy would have to be to try to swing a state in the presidential election.
What power will a commission like this have if it's viewed dubiously by experts and the press? Aren't they just making suggestions?
A lot of the suggestions are aimed at states in terms of best practices—that was especially true of the last commission, the Presidential Commission on Election Administration. And a number of those proposals have been adopted or are being considered. These commissions have no force of law—they can only make proposals that would have to be adopted by states or Congress. But because we have a decentralized system, [it's] usually the states or localities. If this commission ends up being one-sided and not producing actual real evidence, its primary purpose will be to try to legitimate Trump's unsubstantiated claims and potentially undermine voters' confidence in the fairness of the electoral process.
So even if they don't change federal law—or it's done locally and these are just tips—there's still power in a presidential commission reaching conclusions that can be cited by, say, pro-Trump state officials, right?
We've seen commission reports in the past cited in court opinions on the question of voter fraud.
Does it make sense to be looking into this at all?
There is some voter fraud. When it happens, it tends to happen with absentee ballots. There's actually a scandal happening now in West Dallas, Texas, it looks like some elderly voters were targeted with fake requests for absentee ballots and those ballots were potentially voted in the wrong way. There are reasons to worry about fraud in small local elections where changing a handful of votes could make a difference. But not the kind of fraud that Trump has been suggesting—that's just not happening on any large scale, and certainly not impersonation fraud, which is virtually nonexistent.
Can you talk at all about past cases—how does fraud in 2016 compare to recent contests?
There's a lot more focus on the question now—I don't think there's any more fraud. If anything, there's probably less fraud because everyone's looking for it. But it's not as though we have hard and fast numbers we can compare election to election.
What kinds of changes are plausible or reasonable when it comes to the vulnerability of the election process?
For the commission to make recommendations, it's going to have to include computer scientists and election officials who know this area. Let's wait and see what the commission looks like and whether they actually include people who know something about this stuff.
Voter fraud is often framed as a scourge or a myth. But we do have recent precedent for it in the United States at a national level, right? I'm thinking 1960.
The 1960 case in Illinois is still debated as to whether or not that affected the presidential election. There have been cases—they almost always involve either election officials committing fraud, or mail-in ballots.
One of the most recent prominent cases is the 1997 mayoral race in Miami, which involved 25,000 or more fraudulent absentee ballots. But when it happens it's typically happening in very small elections where you have a chance to make a difference.
What does the expected presence of Kansas Secretary of State Kris Kobach on this panel mean for its integrity given his voter fraud fear-mongering in Kansas?
He is someone who has trumpeted very broad claims of voter fraud, and he has claimed that there's a lot of noncitizen voting. So far, courts that have examined these in the context of litigation against him have rejected his claims for a lack of evidence.
He's the one that Trump apparently relied on in coming up with this figure about millions of non-citizens voting. [His appointment] would not give me great confidence in the expected fairness of the process.
How reasonable do you think it is that we'll see major changes to American election law between now and 2020?
We're going to continue to see red states passing laws making it harder to register to vote, and blue states passing laws making it easier to register to vote. And I don't think this commission will do anything other than provide the cover for red states to do more of the same.
So liberals who are panicked or terrified by this should chill out? Or is the fear warranted?
The biggest concern I have in terms of actual electoral change would be if Congress changed the rules as related to congressional elections, which it has the power to do, such as by repealing parts of the Motor Voter Law of 1993. This could have very significant effects on the outcome of the election by making it harder to register poor people to vote.
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