Since narrowly losing Georgia to Joe Biden, President Donald Trump has promoted baseless claims of voter fraud in a desperate effort to overturn the results of the election. So far, however, the only individual credibly accused of a fraudulent effort to steal the election is South Carolina Sen. Lindsey Graham. On Monday, Georgia Secretary of State Brad Raffensperger—who, like Graham, is a Republican—told the Washington Post that Graham asked him if he could throw out all mail ballots from counties with a high rate of signature mismatch. Raffensperger later clarified that he believed Graham wanted his office to throw out valid, legally cast ballots. The senator has contested this account.
Graham’s alleged request is unseemly and corrupt. But is it criminal? In short, yes, according to multiple Georgia election law experts. If Raffensperger’s account is true, there is virtually no doubt that Graham committed a crime under Georgia law. The more difficult question is whether Graham will suffer any consequences for his alleged offense. Because he is a Republican and a sitting U.S. senator, Graham likely won’t face an investigation, let alone prosecution, for conduct that would get almost anyone else arrested. It might be tempting to dismiss Graham’s alleged interference as unscrupulous strategizing blown out of proportion. But Georgia has a sordid history of prosecuting putative voter fraud involving far more innocent conduct. Graham does not deserve a pass simply because he is a wealthy white senator.
To understand why Graham’s alleged conduct was criminal, we have to look at what, exactly, he asked Raffensperger to do. He says Graham wanted him to toss out thousands of perfectly valid mail ballots, omitting them from the official count, because they were mailed from a county with unusually high rates of signature mismatch. (That means the signature on the ballot envelope doesn’t match the signature on file.) Signature mismatch disproportionately affects racial minorities, who lean Democratic overall, and Georgia is required to let voters cure a mismatched signature under a federal court order.
Had Raffensperger followed through with this request, he would’ve run afoul of several state laws. In Georgia, it is a crime for anyone, including election officials, to destroy a ballot. It is also a crime for anyone to falsify any records or documents used in connection with an election, or to place any false entries in such records. Another law explicitly criminalizes such conduct by elected officials, prohibiting the falsification of any document related to their public office.
Raffensperger did not follow through; instead, he blew the whistle. That doesn’t mean Graham is off the hook. Cathy Cox, the dean of Mercer University’s School of Law who previously served as Georgia’s secretary of state, told me that at least two other state laws encompass the senator’s alleged actions. The first bars “attempts to interfere with” an election official’s “performance of any act or duty.” By allegedly asking Raffensperger to falsify the vote count, Graham plainly sought to interfere with the secretary of state’s truthful certification of the election. The second law targets “criminal solicitation to commit election fraud.” An individual is guilty of this offense when he “solicits, requests, commands, importunes, or otherwise attempts to cause” another person to commit an election-related offense. Destroying ballots and falsifying voting records, Cox noted, both fall into that category. An individual is culpable regardless of whether they succeeded in inducing fraud.
These offenses carry serious consequences. Attempting to interfere with the performance of election duties is a misdemeanor punishable by up to one year’s imprisonment. Solicitation of election fraud in the first degree—which Graham allegedly committed by asking Raffensperger to falsify the vote count—is a felony. The minimum sentence is one year in prison; the maximum is three. In sum, Graham could face several years in prison if convicted of these crimes.
But will he be? Charlie Bailey told me he’s skeptical. Bailey served as senior assistant district attorney in Fulton County, the largest in the state, and narrowly lost Georgia’s 2018 attorney general race. He pointed out that Attorney General Chris Carr, a Republican, has a legal obligation to safeguard free and fair elections in the state. “At the very least,” Bailey said, Carr “should stand up and say: ‘We’re going to investigate this. This kind of conduct will not be tolerated.’ ” (There is at least one obvious place to start such an investigation to determine if criminal conduct occurred: One of the secretary of state’s top staffers was also on the call and has tried to hedge in the press without contradicting either Graham or his boss.) But Bailey fears that Carr will decline to probe Graham’s conversation with Raffensperger, bowing to political pressure from the president and his party.
Suparna Malempati, a professor at Atlanta’s John Marshall Law School, agreed. “A courageous prosecutor would launch an investigation in order to ensure that wrongdoing around elections is not taking place,” Malempati told me, “and to send the message that those types of communications are illegal and unacceptable.” But Malempati doubts any state prosecutor will look into the conversation given the high stakes and political ramifications of investigating a sitting U.S. senator, especially since Graham has disputed Raffensperger’s story.
At most, Malempati said, Graham might be the subject of a congressional investigation. (A federal probe is extremely unlikely given the paucity of evidence, the lack of a federal statute that is clearly on point, and the fact that Raffensperger never actually meddled with the results.) But if the Senate remains in Republican hands, it seems improbable that the GOP would support a serious look at this episode. Aside from Raffensperger, no elected Republicans currently in office have condemned Graham’s alleged behavior. The GOP has spent years spreading false claims of mass voter fraud, and many of its members insisted, without proof, that the 2020 election was also tainted by cheating. Now a Republican secretary of state has accused a sitting GOP senator of seeking to commit felony election fraud—and the rest of the party has decided to look the other way.
Republicans are not always so lenient toward those accused of election-related crimes. In 2012, a GOP district attorney charged Olivia Pearson, a Black woman, with voter fraud after she helped someone use a voting machine. She was acquitted after two trials, avoiding a five-year prison sentence. In October, she was arrested again for trying to help someone else cast their vote. State officials have also launched an ongoing investigation into voter fraud with the intention of prosecuting individuals who made mistakes that did not affect the outcome of any election. Graham’s phone call with Raffensperger might seem like a relatively minor offense. But if he weren’t a white Republican senator, he may well be facing years in prison.