Jurisprudence

The Voter Fraud Mythmakers Are Starting Up Again

There are many reasons to doubt the latest claims of voter fraud.

People leaning over to vote while seated at voting booths inside a church in Ohio.
People cast their votes on Nov. 6, 2018, in Zanesville, Ohio. Nothing shady going on. Justin Merriman/Getty Images

When Kentucky Republican Gov. Matt Bevin lost reelection in November, it didn’t take long for him to find a scapegoat. Bevin declared (without a shred of evidence) that “there really are a number of significant irregularities” that cast doubt on the result. Even after conceding the race, Bevin said that he only lost because Democrats are “very good at harvesting votes in densely populated urban areas.”

This rhetoric serves a more nefarious purpose than simply making a sore loser feel better. The insistence that illegitimate voters are influencing elections helps justify new restrictions on the franchise that fall disproportionately on racial minorities, students, and lower-income people—in other words, citizens who are more likely to vote Democratic. Republican allegations of voting “irregularities” almost always prove to be fictitious or wildly overblown. Yet the increasingly conservative federal judiciary has, in modern times, never been more inclined to uphold voter suppression justified by the myth of voter fraud.

We can expect the refrain of voter fraud warnings to intensify ahead of 2020. On the same day that Bevin suggested, on three different radio shows, that Democrats stole the election, Ohio Republican Secretary of State Frank LaRose sent a letter to state Attorney General David Yost asking him to investigate and prosecute noncitizens for voting illegally. LaRose identified “277 individuals who registered to vote in Ohio and 77 individuals who cast a ballot in an Ohio election and who appear to be legally present, noncitizens.” If LaRose is correct, then noncitizens cast about 0.002 percent of the total votes in Ohio’s 2018 elections.

But is he correct? Probably not. We have been through this before. In January, Texas’ then-acting Secretary of State David Whitley, a Republican, announced that 95,000 noncitizens were registered to vote in the state, “58,000 of whom have voted.” Texas Attorney General Ken Paxton, also a Republican, repeated the allegation in a tweet that he framed as a “VOTER FRAUD ALERT.” The state quickly began the process of removing these “noncitizens” from the voter rolls.

But Whitley’s methodology was fatally flawed: He had cross-referenced the voter rolls with records from the Department of Public Safety, identifying individuals who were noncitizens when they obtained or renewed a driver’s license. Fifty thousand Texans are naturalized each year, and they are not required to inform DPS when they gain citizenship. Whitley had apparently targeted naturalized citizens. He quietly retracted his initial claim in a settlement, then resigned after the Texas Senate refused to confirm him because of the controversy.

LaRose is not as ambitious as Whitley—or as Kris Kobach, the pioneer of voter fraud fervor, who said he found 18,000 noncitizens on the Kansas voter rolls when he served as secretary of state. (In reality, fewer than 40 even attempted to register.) Still, LaRose’s analysis may well be faulty. Like Whitley, LaRose cross-referenced voter rolls against the state’s driver’s license records. Unlike Whitley, LaRose purportedly checked to see if the individuals in question still identified as noncitizens after “voter activity.” His allegations, however, are far from conclusive. In the past, many of these ostensible matches have proved to be the result of administrative errors. The Ohio Bureau of Motor Vehicles may have simply failed to update its files, as maintaining citizenship records is far from a priority.

There is another reason for caution. LaRose’s predecessor as secretary of state, Jon Husted, initiated Ohio’s routine review of alleged voter fraud. He, too, claimed that a small number of noncitizens voted in each election. But Husted described their votes as “mistakes” that were often “completely in error,” lacking any “nefarious intent” or “political overtones.” Instead, green card holders believed that casting a ballot would help them gain citizenship. Prosecutors declined to prosecute the vast majority of cases, finding that targeted voters were merely confused or ill-informed.

Moreover, Ohio officials have a terrible track record in determining who should be removed from the voter rolls. After the Supreme Court greenlit aggressive purges in 2018, the state singled out 235,000 voters for removal. Voting rights advocates discovered that 40,000 people, or nearly 1 in 5 names, should not have been on the purge list. Worse, individuals wrongly placed on the list were disproportionately located in heavily Democratic counties. The mishap demonstrated that Ohio’s records are a mess, hardly a reliable basis for LaRose’s claims.

These errors do not only affect the people referred for prosecution. The specter of noncitizen voting has generated legislation across the country that creates barriers for eligible voters. Inspired by federal charges against 19 noncitizens who allegedly voted in North Carolina in 2016, Republican lawmakers in the state recently passed a bill that would have compelled courts to forward the names of noncitizens disqualified from jury duty to the election board. If the board found any individuals who were registered to vote, it would purge them. Democratic Gov. Roy Cooper vetoed the measure in November, explaining that it “creates a high risk of voter harassment and intimidation and could discourage citizens from voting.”

What is the point of this fixation on a vanishingly small number of inadvertently unlawful votes? The image of hundreds or thousands of illegal voters stealing elections, even if that image later turns out to be false or misleading, is meant to create doubt in the legitimacy of the system. GOP lawmakers undermine public confidence in election integrity by making up voter fraud, then contend that they must make voting harder to restore this confidence. By and large, the courts accept this premise. When the Supreme Court upheld Indiana’s voter ID law, it ruled that states have an important interest in “protecting public confidence” in elections. This line has been repeated myriad times by lower courts determined to uphold draconian voter rules, without a scintilla of evidence of widespread fraud.

In the run-up to the 2020 election, Republicans are planning a raft of new restrictions that, they say, will protect election integrity. There’s a Tennessee measure that will impose criminal penalties on voter registration groups that make minor errors. (It passed but has been blocked in court.) There’s a Texas bill that would criminalize mistakes on voter registration forms. (It passed the state Senate but stalled in the state House.) There’s an Arizona bill that would’ve purged more than 200,000 people from the state’s early voter rolls. (It, too, passed the state Senate before floundering in the House.)

Each attack on suffrage will be accompanied by expressions of deep concern over the public’s confidence in the electoral process. But every time a politician proclaims they’ve found new evidence of illegal voting, remember who benefits from the ensuing panic. It isn’t voters—it’s lawmakers who are afraid of free and fair elections.

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