Trump and Barr Make Baseless and Harmful Claims About Mail-in Voter Fraud

Issues
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William Barr speaking at a podium while Donald Trump looks on from the background
President Donald J. Trump, left, listens as United States Attorney General William P. Barr, right, speaks during a news briefing by members of the Coronavirus Task Force at the White House in Washington, DC on Monday, March 23, 2020. Photo by Chris Kleponis/Pool via CNP /MediaPunch Credit: MediaPunch Inc/Alamy Live News

Attorney General Bill Barr has been busy following the President’s lead in spreading unfounded claims of potential widespread fraud in absentee voting. As an election lawyer for previous Republican presidential candidates, I know these claims are baseless and harmful to our democracy. The Attorney General’s partisan role-playing and his false statements about absentee voting seem frighteningly designed to threaten the public perception of the legitimacy of the November election.  

On Fox News, Barr said that large-scale mail-in voting “opens the floodgates to fraud.” In the same interview, he continued to say he is “worried about undermining the public confidence in the integrity of the elections” – a duplicitous statement since he is the one creating and fanning the flames of hysteria which weakens public confidence in elections.

This is a double standard. Barr voted absentee in Virginia as recently as last year. President Trump himself voted by mail in the Florida primary earlier this year. Similarly, Vice President Pence voted absentee in Indiana, and dozens of other senior administration officials have as well. At the same time, their statements discourage average citizens from doing the same.

So why are Barr and Trump trying to sow doubts about absentee voting? The answer is Trump has expressed nakedly partisan reasons for opposing absentee voting, saying that it doesn’t work out for Republicans. In reality, expanding vote-by-mail has been proven to be partisan neutral.

On Fox, Barr cited two specific objections to absentee balloting – both fictional. The first was his claim that “foreign powers” could forge tens of thousands of absentee ballots and send them to election offices as votes for their preferred candidate. In fact, while in theory foreign entities could print up phony ballots, that would not get them anywhere, because each state has mechanisms in place to verify the identity of the voter before an absentee ballot is opened and counted. 

Protections Against Voter Fraud

Here are just a few examples. The envelopes sent in by voters to election officials containing cast absentee ballots are ordinarily required by law to contain the voter’s name and personal address and that information is compared to each voter’s name and address on the registration list before the ballot is accepted.

The voter is often required to provide further proof of personal identification, either a signature that can be compared to the registration file or a state driver’s license number, last four digits of the voter’s Social Security number, or both.

The outside envelopes also often carry unique bar codes or other specialized identifiers created by state elections offices verifying both the authenticity of the ballot and the identity of the voter, so they would be almost impossible to forge in a personalized way. Officials also confirm that the voter has not already voted in that election, either in-person or by mail – if they have, then the ballot is not accepted.

Given all of this, any mass attempt at ballot forgery would certainly fail to penetrate these individualized security devices. Veteran election officials of both parties have emphasized the logistical impossibility of the kind of widespread submission of fraudulent ballots by foreign actors that Barr has described.

The Attorney General’s unfounded “foreign interference” scare is topped only by his other claim that absentee ballots present a threat to voter privacy because their signatures are on the envelope and “so the person who opens the envelope will know how they voted.” This is laughable. Vote-by-mail and the secret ballot have long coexisted peacefully in our election system. The universal practice is for the signed outside envelope to contain another blank envelope within it enclosing the actual ballot. Therefore, the person verifying the signature and opening the outside envelope has no idea who the voter supported – once the authenticity of the voter is established, they just take the blank envelope containing the ballot and put it in the box with all the other ballots in blank envelopes, to be opened and counted by other officials.

The other objection to absentee voters increasingly raised by Republican Party officials is what they pejoratively call “ballot harvesting.” What they are objecting to is voters receiving assistance in delivering their ballots on time. In its simplest form, this is a voter giving their ballot to another person (not the post office) to deliver to the election office. There are many reasons someone might want to do this – particularly during a pandemic – including inability to leave the house, bad mail service, or lack of transportation options. Given the significant delays in absentee ballot delivery in recent elections and many states’ strict deadlines for receipt of absentee ballots, it’s not unreasonable that some voters might look to their fellow citizens to ensure their ballots are timely delivered.

In any event, the vast majority of states (37 of them) restrict who can collect and deliver absentee ballots to election officials. The most common restrictions limit the procedure to family members or only allow an individual to deliver a small number of ballots. But more importantly, even absent restrictions on who can help voters deliver their ballots, all of the other regular and most effective security provisions for absentee balloting are still in place. Even where not severely restricted – “ballot harvesting” is a straw man. Our vote-by-mail system is well-equipped to detect real fraud. Proof of this comes from a recent example of attempted absentee fraud – which was quickly detected and punished.

In a North Carolina Congressional race in 2018, the Republican candidate hired a “ballot expediter” who went through the district collecting ballots, forging some and destroying others. These actions were detected, and the state election officials ordered a new election. The bottom line is that the system worked. In the  isolated cases of attempted fraud with absentee ballots that occur, they are detected, and the integrity of the election is protected. The perpetrator in North Carolina was charged with two felonies. 

Absentee Voting is Partisan Neutral

Having served as general counsel to GOP presidential and U.S. Senate campaigns in the past, I am puzzled by these attempts by the President, the Attorney General, and Republican Party lawyers to question the validity of absentee votes for two reasons.

First, the Republican Party has heavily invested in encouraging older Americans to vote absentee for many years, especially in states like Florida, Arizona and California which have large concentrations of seniors. For years, the Republican Party has relied on absentee voting and invested significant resources in these programs.

Second, older Americans in 2016 favored Trump more than the population at large – and it is older voters who are statistically most at risk from COVID-19 and therefore should avoid crowded in-person voting centers (as are many Americans with diabetes, lung issues, immune issues, or other underlying health conditions). In 2018, 30% of Americans age 65 or older cast their ballots by mail, according to the conservative R Street Institute.

Voting by mail is not new. It’s been happening since the Civil War, when huge segments of the Northern voting population were far from home on election day. In recent years, President Ronald Reagan signed into law the Uniformed and Overseas Citizens Absentee Voting Act, which was a major expansion in vote-by-mail in 1986 focused on providing ballot access to our military service members, diplomatic corps, and other Americans abroad.

Four states, Oregon, Washington, Colorado and Utah, have conducted their elections almost entirely by mail in recent years, with no evidence of fraud. Other large and swing states like Arizona routinely have more than 50% of their votes cast by mail. The surge in vote-by-mail in 2020 has been a positive sign, but also shows that there is much work to be done before November to ensure that mail in balloting works smoothly – especially in states which have previously only had small numbers of such ballots. In Wisconsin’s primary election this spring, 1.3 million voters used absentee ballots – compared to 800,000 in 2018.

In Iowa, the Republican Secretary of State sent out absentee ballot applications to every registered voter in their June primaries, which set a record for primary turnout. Republican Secretaries of State in numerous states have been in the forefront of expanding absentee voting this year – the most prominent being West Virginia, Ohio, Iowa, Kentucky, Georgia, and Idaho.

Meanwhile, a recent study from the Stanford Institute for Economic Policy Research found that vote-by-mail is partisan-neutral with regard to share of turnout and vote share.

My fear is that Americans hear Barr’s comments and read Trump’s tweets – which have been flagged by Twitter Safety for misleading voters – and get confused about the security of absentee voting. This is a terrible result amid the COVID-19 pandemic because reducing crowding at in-person voting locations by expanding vote-by-mail is necessary as we try to adhere to social distancing guidelines and make it safe to vote.

There is no time to lose to scale up America’s vote-by-mail operation before November. And false information from the Attorney General at this moment looks like an indefensible attempt to propagate false narratives and confuse the public. 

Trevor is CLC's founder and one of the country's top election lawyers.