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Ask Civics 101: What Is Voter Fraud, And Does It Ever Actually Happen?

Today we're answering a listener question about voter fraud - namely, what is it and how often does it actually happen?

Read on, or listen to this short episode for the answer.

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We heard it a lot this year: Voter fraud. Widespread, rampant, election-ruining voter fraud. Yet at the same time, election officials say they can’t find the evidence of significant fraud. So what is the truth about voter fraud? 

We spoke with Justin Levitt, law professor at Loyola Law School in Los Angeles who has investigated and analyzed these allegations. He says, yes, there are various types of voter fraud, and they happen. But very rarely.

"The important thing to know in distinguishing real actual incidents of voter fraud from wild handwaving in all caps," says Justin, "is that real voter fraud is based on breaking the law in some way." 

For example, voting more than once, impersonating an eligible voter, voting in more than one state or attempting to.

Laws vary from state to state, but in many it is a felony to take any of these actions. Sometimes this is nefarious, or sometimes it’s a relative voting for their deceased loved one to carry out their last wishes or something. It's illegal either way, but exceedingly rare.

"The way to distinguish these real incidents from hot takes that turn out to be fiction," says Justin, "is to find real facts that show real wrongdoing against real law. And unfortunately, all too often what we hear are claims of voter fraud that are based in 'I don't like people who don't think like I do voting.'"

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In other words, unsubstantiated voter fraud claims are often an expression of fear or frustration at the prospect or fact of your preferred candidate losing the election. That, or simply misunderstanding elections.

And something that is entirely in the bounds of election law may be percieved as fraud to someone who doesn't understand election law.

"And it's real easy to jump really quickly in a conspiratorial mindset from 'this seems strange,' 'but I don't understand' to 'that must be fraud,'" says Justin,

"So people have to be pretty careful if they want to actually do their homework in distinguishing the real occasional incidents that happen very often from the wild claims in looking through. OK, what's the actual allegation? Who actually did what? And most important, is that thing illegal?"

Justin gives this example of suspecting that it’s voter fraud: Someone voting in a state in which they don’t live. In actuality, this is just a misunderstanding of legal absentee voting.

"Mike Pence votes in Indiana, but doesn't live there," Justin points out. "Donald Trump votes in Florida, but does not live there. Many, many, many, many, many members of the military live in a place that is not their voting residence and vote in a place where they are not currently living. Many college students and other people with transient addresses vote in places that they don't currently lay their heads at night. That's not fraud. That's not a breakdown in the system."

Then there are the claims that election officials are manipulating ballots after they've been cast. Conspiracy theorists often point to photos of poll workers filling ballots out.

"It turns out there's a process in literally every state for taking ballots that may have been damaged, torn, fallen into water somewhere they can't get rid by scanners and in bipartisan teams doing what's called remaking those ballots," Justin says, "taking the ballot very carefully, filling out onto a clean sheet of paper that can be tallied by scanners, the same choices that the voter had originally."

Despite its rarity, legislators pass laws, like voter ID requirements, that tighten election security in order to prevent widespread fraud from happening. Those laws are immensely controversial, and seen in some instances as roundabout efforts to disenfranchise voters. 

"So the fight over things like, for example, presenting ID at the polls, every state has some means to make sure that you are who you say you are when you go to vote, every single one," Justin says.

"The question isn't, should we have a way to prove that you are who you say you are? The question is, what kind of things should we permit in order to make sure that the election system is reasonably secure while also making sure that we are not unreasonably locking out eligible voters?"

Justin says it’s important to recognize that insistences of voter fraud with no evidence of voter fraud gives you insight into how voters are feeling. It has to do with intense emotion rather than clear fact, a context that can be helpful when parsing apart claims of rampant fraud.

"Claims about voter fraud without much more meat to them strike me as proxies," Justin says.

"They're expressions of frustration, they're expressions of anguish. They are communications about disengagement with the system that we have. They're often not really about whether the law was broken in a particular way, in a particular jurisdiction, at all."

"But if we can recognize that a large part of that conversation is expressing some other deeper disengagement, that may help point the way toward embracing all of the voters who participate in the process."

Hannah McCarthy first came to NHPR an intern in 2015, returned as a Fellow the following year and then bounced around as a reporter and producer before landing as co-host of Civics 101. She has reported on everything from the opioid epidemic to State House politics to haunted woods of New Hampshire.
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