How Do We Find Balance Between Voting Rights and Election Security?
By Andy Jackson, Director, Civitas Center for Public Integrity, and Jay Chaudhuri, State Senator, North Carolina
We Can Protect the Right to Vote While Ensuring Election Security
By Andy Jackson – Director, Civitas Center for Public Integrity
The right balance between voting access and election security can be found, but only if we take both voting rights and the threat of election fraud seriously.
Through a review of American history and recent examples, the Supreme Court found in Crawford v. Marion County Election Board (2008) that “not only is the risk of voter fraud real but that it could affect the outcome of a close election.”
Evidence of Voter Fraud Warrants Action
Here is a sample of some of the election crimes from the past decade that have taken place just in North Carolina:
- Officials had to order a new election in Pembroke in 2013 after two candidates, Allen Dial and Theresa Locklear, took advantage of North Carolina’s same-day registration system to bring ineligible people to the town’s early voting location to vote. They included “several young men who came from out of state to attend a basketball program” at a nearby university.
- In 2021, Wanda Faye Blue and Julia Shaw accepted plea bargains related to illegally taking possession of marked ballots (known as ballot trafficking or ballot harvesting). The charges stemmed from a scheme involving the two manipulating nursing home patients, including at least one with Alzheimer’s, to get their ballots.
- Perhaps the most famous recent example of American election fraud happened in 2018 in the 9th Congressional District race in Bladen County, North Carolina. McCrae Dowless and his crew allegedly trafficked hundreds of absentee ballots, forcing election officials to hold a new election. Such activities by Dowless and others had been taking place in Bladen County for years with no intervention from authorities.
A New York City Department of Investigation (DOI) report in 2013 highlighted how vulnerable our elections can be. Investigators first examined voter rolls and found registrations of individuals who had died, moved out of the city, or were otherwise ineligible to vote. Undercover investigators then posed as those individuals and attempted to vote. They were “permitted to obtain, mark, and submit ballots” in 61 of 63 attempts. (The investigations either submitted blank ballots or wrote in “John Test.”) One of the attempts failed because a poll worker happened to be the mother of the person the investigator was impersonating.
Despite these examples, election fraud is often difficult to detect, investigate, and prosecute. Former North Carolina State Board of Elections Executive Director Gary Bartlett reported that he had referred “more than half a dozen” reports of organized absentee ballot fraud operations to prosecutors, none of which went to trial, much less resulted in prosecutions.
How Do We Address Voter Fraud While Maintaining Ballot Access?
Resistance to election fraud cannot solely depend on investigations and prosecutions of those crimes. It must also include vigorous preventative measures without unduly burdening the right to vote.
Therein lies the rub: What is an undue burden? Let’s examine that question through two standard anti-election fraud measures: voter registration list maintenance and voter ID.
Forty-nine states require those who wish to vote to register. Over time, voter registration lists become filled with “inactive” voters who died, moved away, or otherwise dropped out of the voting system without local election officials finding out.
To ameliorate the problem of bloated voter registration rolls, election officials in most states regularly perform list maintenance, sometimes called “voter purges,” to remove inactive voter registrations. The North Carolina State Board of Elections says list maintenance “ensures ineligible voters are not included on poll books, reduces the possibility for poll worker error and decreases opportunities for fraud.”
Although list maintenance is necessary, it should be conducted in a manner that minimizes the risk of removing eligible voters. That includes waiting for multiple election cycles before removing registrations and attempting to contact registered voters before their removal.
Voter ID is the most effective preventative measure against voter fraud. It is also a basic election security measure supported by most Americans. It should be implemented to allow voters to use a variety of IDs that firmly establish their identities. It should also provide safeguards for voters, such as alternative procedures for those who have religious objections to being photographed and those who temporarily do not have an ID due to natural disasters or other hardships. That would limit the burden on voters while protecting their votes. In the trial phase of Crawford v. Marion County Election Board, plaintiffs failed to produce any witnesses who claimed they could not meet the requirements of Indiana’s voter ID law.
These and other measures, such as bans on ballot trafficking, allow citizens to vote while protecting against voter fraud.
Debunking the Voter Fraud Myth
By Jay Chaudhuri – State Senator, North Carolina
I agree with Dr. Jackson that we must strike the right balance between voting access and election security. And I agree that we must protect the integrity of our elections. However, we cannot make access to the ballot harder in the name of pushing the myth of voter fraud.
Voter Fraud Rhetoric is Irresponsible and Inaccurate
Dr. Jackson references the United States Supreme Court’s Crawford v. Marion County Election Board in his opening argument as an example of where the risk of voter fraud “could affect the outcome of a close election.” He goes on to cite anecdotal evidence of voter fraud that took place in North Carolina. But, Dr. Jackson misses the point for a couple of reasons.
First, Dr. Jackson’s citation of Crawford to support his argument that voter fraud is a serious issue should raise concern and additional context to this case reveals why. The 2007 Crawford appellate opinion was authored by Judge Richard A. Posner, one of the most respected federal judges in our country, and then affirmed the following year by the United States Supreme Court. But, in his book Reflections on Judging, Judge Posner writes that the Indiana voter identification law is “a type of law now widely regarded as a means of voter suppression rather than of fraud prevention.” In an interview, Judge Posner admitted that he got the court opinion wrong, stating that the member who dissented in the three-judge panel was right. Judge Terence T. Evans, who wrote the Crawford dissent, opened his opinion by saying, “Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks to skew Democratic.” Even the United States Supreme Court’s opinion that upheld Crawford stated that the record in the case “contains no evidence of any [in-person voter impersonation] fraud actually occurring in Indiana at any time in history.” In short, the principal author of the Crawford opinion cited by Dr. Jackson admitted he was wrong six years later. This alone should raise concern.
More importantly, however, is that although Dr. Jackson references anecdotal evidence regarding voter fraud, he overlooks extensive research that shows “voter fraud is very rare, voter impersonation is virtually nonexistent, and many instances of alleged fraud are, in fact, mistakes by voters or administrators.” The Brennan Center’s The Truth About Voter Fraud report reviewed elections that have been carefully studied for voter fraud and found incident rates between 0.0003 percent and 0.00025 percent. The Brennan Center report noted that an American is more likely to be “struck by lightning than that he will impersonate another voter at the polls.”
The Washington Post published a 2014 study that found 31 credible examples of voter impersonation fraud out of more than 1 billion ballots cast between 2000 and 2004. The authors of the 2014 study note that the 31 credible instances are most likely inflated because the authors included any and all credible claims. In June 2022, even Donald Trump’s attorney general, William Barr, declared that the United States Justice Department had uncovered no evidence of widespread voter fraud that would change the outcome of the 2020 election.
Fraud Prevention or Voter Suppression?
I agree with Dr. Jackson in that voter registration lists are necessary and should be carried out with the minimal risk of removing eligible voters.
Unfortunately, we’ve witnessed several Republican states abandon the Electronic Registration Information Center (ERIC), an organization started in 2012 by seven states, including four Republican states. ERIC is a non-profit and non-partisan organization that compares voter registration data from participating states to clean up voter rolls and maintain accurate voter lists. South Carolina State Election Commission public information officer John Catalano refers to ERIC as “valuable” and “irreplaceable” in maintaining clean voter rolls.
Yet, eight Republican states have now left the once-uncontroversial group because prominent Republicans such as Donald Trump have attacked ERIC, wrongly labeling it as a liberal effort to control voter rolls. The outcome of such misinformation is that Republican states have turned against the very organization that’s designed to cut down on voter fraud.
Dr. Jackson argues that voter identification is an effective preventative measure against voter fraud, a similar argument made in Crawford. But photo identification requirements prevent millions of eligible citizens from voting. According to the Brennan Center, as many as 11 percent of voters do not possess photo identification, with a disproportionate amount being seniors, minorities, the disabled, and students. Last December, the North Carolina Supreme Court struck down the state’s 2018 voter identification law based on the state constitution’s Equal Protection Clause, holding that it was racially discriminatory.
Yes, Dr. Jackson is right that we need to find a balance between voting access and election security. But the solution to do so isn’t pushing the myth of voter fraud, abandoning an uncontroversial non-partisan organization that cleans up voter rolls, and passing photo identification requirements that disproportionately impact vulnerable populations.
Election Security Is a Cornerstone of Our Democracy
By Andy Jackson – Director, Civitas Center for Public Integrity
If election fraud is a “myth,” as Senator Chaudhuri terms it, then there is no need for any election security measures. I provided three examples of election fraud. Two of those were so severe that they resulted in overturned elections. They occurred in the past decade in just one state, which happens to be North Carolina. Yet Senator Chaudhuri dismisses them as mere “anecdotal evidence.”
It is reminiscent of the kind of dismissive attitude that led the former head of the North Carolina State Board of Elections to complain that, while law enforcement officers will investigate higher-profile election law violations by government officials, “if it’s on a lower level, it may get handled and it may not.” Such indifference toward enforcing election law both lessens the number of prosecutions, thereby reducing the number of confirmed cases, and makes our elections less secure.
For those reasons — personal opinions of one judge aside — courts have continued to uphold preventive election security measures. Indeed, the Fourth Circuit Court of Appeals referenced Crawford when it unanimously upheld voter ID in 2020, noting the “state’s legitimate interests in preventing voter fraud.”
States must both prevent the criminal acts of election fraud themselves and make sure those acts do not collectively rise to the point of affecting election outcomes. They cannot do so if officials simply presume that election fraud is unimportant or does not exist.
By analogy, the average convenience store has about 400,000 transactions per year. If a store is subject to an armed robbery yearly (with an average of only one in three resulting in a conviction), government officials could downplay the store owner’s concerns about armed robbery, with only one confirmed case out of 1.2 million encounters: a rate of 0.00008 percent. They could even be flippant and tell the store’s owner that she is more likely to be struck by lightning than her store is to be robbed. Since she has a legitimate interest in preventing her store from being robbed, however, I suspect she will take precautions to protect herself and her business better, such as installing security cameras and demanding better police protection.
Likewise, we need to take precautions to better prevent election fraud and detect it when it happens. We can balance voting access and election security only if we take both seriously.
The Data is Clear: Our Elections Are Secure
By Jay Chaudhuri – State Senator, North Carolina
Dr. Jackson continues to argue that we should implement voter identification for millions of voters based on exactly three examples of voter fraud. He’s correct to suggest that I’ve characterized such examples as anecdotal evidence because the empirical evidence—including the Brennan Center study, the Washington Post published study, and even President Trump’s Department of Justice—have repeatedly demonstrated that voter fraud is extremely rare. There are two questions we must answer to resolve this debate: First, should we put policies in place based on mere anecdotal evidence? Second, should we put policies in place based on the intent and motivation of Republican bill sponsors?
First, the use of anecdotal evidence is a poor basis for enacting sweeping policy decisions such as voter identification laws. Here’s an example of the logical fallacy that arises when we make decisions based on anecdotal evidence: Three people claim that they’ve been around a lot of people and have never gotten COVID-19; therefore, we should do away with practicing social distancing because it doesn’t prevent the spread of COVID-19. But, as we know from large amounts of data and scientific study, close contact with infected individuals is how COVID-19 spreads. This is why making policy decisions based on anecdotal evidence is problematic.
Second, it’s important to draw attention to the motivation of putting in place such restrictions to the ballot. This is because several examples of voter fraud have led to the myth that voter fraud is widespread. Now, more than 60 percent of Republicans believe there’s widespread voter fraud. It is what has driven Republicans to push for voter identification laws and abandon ERIC, a once-uncontroversial group that’s actually focused on cutting down voter fraud. Thus, while election security is important, we must look at the bigger picture to make informed policy decisions.
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