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Dirty Tricks: 9 Falsehoods that Could Undermine the 2020 Election

Truth Matters: Fake election crises can undercut trust in the vote, inflame partisan tensions, and destabilize our democracy.

  • Max Feldman
Last Updated: July 30, 2020
Published: May 14, 2020

The 2020 elec­tion will be hard-fought and divis­ive. The Covid-19 pandemic has already caused major disrup­tions to our elec­tions system, and the risk that other real crises — natural disaster, machine break­down, foreign inter­fer­ence — will further disrupt the elec­tion is signi­fic­ant. But there is also a signi­fic­ant risk that polit­ical actors will manu­fac­ture crises to under­mine elec­tion results they don’t like. These fake crises can under­cut trust in the accur­acy of elec­tion outcomes, inflame partisan tensions, and destabil­ize our demo­cracy.

Here are nine lies, miscon­cep­tions, and false argu­ments that we think voters will have to contend with in 2020:

1. “Voter Fraud” Is Rampant

The Claim: There is wide­spread voting by ineligible indi­vidu­als.

The Truth: This type of fraud is extremely rare.

  • Based on a metic­u­lous review of elec­tions that had been invest­ig­ated for voter fraud, the Bren­nan Center found minis­cule incid­ent rates of ineligible indi­vidu­als fraud­u­lently cast­ing ballots at the polls – no more than 0.0025 percent. Numer­ous reports have confirmed our find­ing that voter fraud is exceed­ingly rare. Research shows that voter fraud is simil­arly rare with mail ballots.
     
  • An exhaust­ive review by Professor Justin Levitt of Loyola Law School found just 31 cred­ible instances of imper­son­a­tion fraud from 2000 to 2014, out of more than 1 billion ballots cast.
     
  • Overhyped alleg­a­tions of voter fraud are regu­larly made, but follow-up invest­ig­a­tion almost always reveals that these claims were based on funda­mental errors. For example, in 2017, Kris Kobach – the vice chair of Pres­id­ent Trump’s voter fraud commis­sion – claimed that thou­sands of out-of-state voters had cast a ballot illeg­ally in New Hamp­shire in the 2016 elec­tion, swinging that state’s Senate elec­tion. Kobach’s claim was based largely on a misun­der­stand­ing of New Hamp­shire law and was quickly debunked.

    In 2018, Flor­ida Gov. Rick Scott claimed that there was “rampant fraud” in his U.S. Senate race, but that claim was rejec­ted by law enforce­ment offi­cials and elec­tion monit­ors from his own admin­is­tra­tion. This pattern has repeated itself again and again.
     
  • These results are not for lack of look­ing for voter fraud. In 2002, then Attor­ney General John Ashcroft created the Voting Access and Integ­rity Initi­at­ive, which aggress­ively invest­ig­ated voter fraud alleg­a­tions as one of the top prior­it­ies of the Justice Depart­ment.

    After five years, however, the U.S. Depart­ment of Justice found little evid­ence of fraud. In 2007, the New York Times repor­ted that only about 120 people were charged and 86 were convicted of elec­tion-related crimes, despite hundreds of millions of votes being cast, during the period under invest­ig­a­tion.
     
  • While fraud by voters almost never occurs, fraud against voters does occur, albeit rarely. This type of fraud is commit­ted by bigger play­ers, with bigger weapons than an improp­erly filled ballot. Think Putin’s hack­ers or elec­tion work­ers stuff­ing ballot boxes. Import­antly, the policies needed to address this kind of fraud are dramat­ic­ally differ­ent than the policies proposed to address the specter of voter imper­son­a­tion fraud.

The Consequences: More restrict­ive voting laws and lower levels of trust in elec­tions.

  • Voter fraud claims have had a deeply dele­ter­i­ous effect on the last decade of Amer­ican elec­tions. They have been used to justify restrict­ive state voting prac­tices — like strict voter iden­ti­fic­a­tion laws and overly aggress­ive purges of the voter rolls — that disen­fran­chise legit­im­ate voters, often in a discrim­in­at­ory manner.
     
  • More broadly, they under­mine trust in the integ­rity of our elec­tions process.

2. Election Day Should be Postponed

The Claim: The pres­id­ent can delay Elec­tion Day because of the coronavirus pandemic.

The Truth: The pres­id­ent has no author­ity to change the date of Elec­tion Day.

  • On July 30, 2020, Pres­id­ent Trump became the first pres­id­ent to suggest that a pres­id­en­tial elec­tion should be post­poned for fear of vote-by-mail fraud due to the coronavirus — a crisis with no fore­see­able end.
     
  • The Consti­tu­tion is clear: the pres­id­ent neither has the author­ity to change the date of the elec­tion — even during an emer­gency — nor extend the pres­id­en­tial term past Janu­ary 20. Unless Pres­id­ent Trump wins re-elec­tion, he will have to leave office on Inaug­ur­a­tion Day.
     
  • Through­out Amer­ican history, pres­id­en­tial elec­tions have been held during crises as severe, if not more severe, than the present pandemic. Elec­tions were held on sched­ule during the War of 1812, the Civil War, the Span­ish flu, and World War II. In two of those elec­tions, the War of 1812 and the Civil War, the very exist­ence of the United States was threatened.
     
  • The Novem­ber elec­tion can be held safely and securely if Congress supplies the neces­sary resources to state elec­tion offi­cials.

The Consequences: A delay in the elec­tion could trig­ger a consti­tu­tional crisis and jeop­ard­ize the peace­ful trans­ition of power in the United States.

  • The United States has been the envy of the world for its abil­ity to adhere to the Consti­tu­tion and guar­an­tee a peace­ful trans­ition of power from one admin­is­tra­tion to the next based on the people’s vote.
     
  • In 1864, during the Civil War, Pres­id­ent Abra­ham Lincoln was determ­ined to main­tain free elec­tions, even though he believed he might lose. “We cannot have free govern­ment without elec­tions,” he wrote, “and if the rebel­lion could force us to forgo, or post­pone a national elec­tion it might fairly claim to have already conquered and ruined us.”

3. Noncitizens Are Voting in Droves

The Claim: Millions of noncit­izens are voting and tipping elec­tion outcomes.

The Truth: Noncit­izen voting is exceed­ingly rare.

  • Follow­ing Pres­id­ent Trump’s alleg­a­tions of wide­spread noncit­izen voting in the 2016 elec­tion, the Bren­nan Center researched the incid­ence of noncit­izen voting in 42 elec­tion juris­dic­tions with large noncit­izen popu­la­tions. We found only about 30 incid­ents of suspec­ted non-citizen voting referred for further invest­ig­a­tion or prosec­u­tion out of 23.5 million votes tabu­lated in those juris­dic­tions. Put another way, suspec­ted noncit­izen votes accoun­ted for 0.0001 percent of the 2016 votes in the juris­dic­tions we surveyed.
     
  • More recently, Texas Secret­ary of State David Whit­ley announced that tens of thou­sands of noncit­izens were on the state’s voter rolls and had cast a ballot. This claim was debunked within days — the secret­ary’s list failed to account for the fact that a large number of people become natur­al­ized citizens and then lawfully register to vote. A federal court inter­vened to stop voter purges premised on this discred­ited claim. And Secret­ary Whit­ley ulti­mately resigned.
     
  • These results make sense. A single vote rarely swings an elec­tion, but the punish­ment for noncit­izen voting is severe — includ­ing impris­on­ment, $10,000 in fines, and deport­a­tion.

The Consequences: More restrict­ive voting laws and lower levels of trust in elec­tions.

  • Claims of noncit­izen voting have been used to justify restrict­ive voting prac­tices that make it diffi­cult for legit­im­ate voters to parti­cip­ate, includ­ing docu­ment­ary proof of citizen­ship laws, voter ID laws, and large-scale voter purges. These prac­tices disen­fran­chise many eligible voters, typic­ally in a discrim­in­at­ory fash­ion, with little to no bene­fit.
     
  • These claims also under­mine trust in the integ­rity of our elec­tions process, and they are partic­u­larly inflam­mat­ory because of their inter­sec­tion with race and immig­ra­tion.

4. The Machines Malfunctioned — They Were Clearly Rigged

The Claim: “Vote flip­ping” by voting machines — and other malfunc­tions, such as machines fail­ing to start, crash­ing, or freez­ing — are clear indic­a­tions that hack­ers have penet­rated machines or that partis­ans have rigged the elec­tion in favor of their preferred candid­ate.

The Truth: Malfunc­tions may be the result of wear and tear rather than hack­ing or manip­u­la­tion. For example, vote flip­ping can be caused by the glue between the touch screen and the machine wear­ing down.

  • The Bren­nan Center has soun­ded the alarm about aging voting machines for years. In 2018, juris­dic­tions in 41 states used voting systems that were at least a decade old.
     
  • Since then, at least nine states have upgraded their voting systems to elim­in­ate old machines. Import­antly, we project that no battle­ground states will use paper­less Direct-Record­ing Elec­tronic (DRE) voting machines in 2020 — the type of machine most suscept­ible to hack­ing and to vote flip­ping.

The Consequences: Inac­cur­ate claims of hack­ing or vote-rigging could lead to extreme partisan conflict over elec­tion results in 2020.

  • Given inter­fer­ence in the 2016 elec­tion and our subsequent polit­ical history, alleg­a­tions of foreign hack­ing of voting machines will be highly inflam­mat­ory and divis­ive, as will alleg­a­tions of vote-rigging.
     
  • Cred­ible alleg­a­tions of hack­ing must be invest­ig­ated, hack­ing must be exposed, and any inter­fer­ence must be remedi­ated.

5. Something’s Fishy — the Results Are Taking Too Long

The Claim: A fail­ure to announce results on elec­tion night is an indic­a­tion of malfeas­ance in the elec­tion process.

The Truth: In a close elec­tion, getting the right result can take time.

  • The modern media envir­on­ment has engendered an unreas­on­able expect­a­tion that elec­tion results will be delivered, defin­it­ively, on elec­tion night.
     
  • Espe­cially in close elec­tions, that expect­a­tion cannot always respons­ibly be met, because elec­tion offi­cials gener­ally cannot complete the canvass of all absentee and provi­sional ballots until after Elec­tion Day.
     
  • Further­more, elec­tion schol­ars Ned Foley and Charles Stew­art have iden­ti­fied a “blue shift” in ballots coun­ted after Elec­tion Day. These “over­time” ballots break dispro­por­tion­ately for Demo­cratic candid­ates because Demo­crats are more likely than Repub­lic­ans to cast provi­sional ballots.
     
  • Some­times, close elec­tions or postelec­tion audits can trig­ger a recan­vass of vote totals or broader recounts, which take addi­tional time.

The Consequences: Rush­ing out elec­tion results can lead to inac­cur­ate elec­tion night calls of outcomes, result­ing in increased partisan conflict over elec­tion outcomes and decreased trust in demo­cratic processes.

  • On elec­tion night in 2000, major news organ­iz­a­tions called Flor­ida for Al Gore, retrac­ted that call, then called the state for George W. Bush, and subsequently retrac­ted that call. The elec­tion was not defin­it­ively resolved until 36 days later. A post­mortem commis­sioned by CNN flatly stated: “Those calls and their retrac­tions consti­tuted a news disaster that damaged demo­cracy and journ­al­ism.”
     
  • More recently, the Iowa Demo­cratic Party set the expect­a­tion that the initial results of the Demo­cratic Caucus would be released at 8:30 p.m. on elec­tion night. Due to a cascad­ing series of tech­no­lo­gical and plan­ning blun­ders, the party was unable to meet that dead­line. The mismatch between expect­a­tions and the actual timeline for produ­cing results gave an open­ing to social media conspir­acy-mongers, who sought to under­mine trust in the ulti­mate outcome.
     
  • In addi­tion, at times, there are errors in the unof­fi­cial elec­tion night results, which then need to be correc­ted. For example, follow­ing Elec­tion Day 2004, Broward County elec­tion offi­cials double-checked their results and found that tens of thou­sands of votes on certain state amend­ments had not been coun­ted as a result of a soft­ware glitch. The soft­ware used to count absentee ballots star­ted count­ing back­ward after it logged 32,000 votes in a race.

6. That’s Not What the Election Night Predictions Said

The Claim: Elec­tion outcomes that differ from elec­tion night projec­tions are suspect.

The Truth: Ballots continue to be coun­ted after elec­tion night and, in a close elec­tion, those ballots can change the outcome.

  • In 2020, we will likely see a surge in the use of mail-in and provi­sional ballots. Covid-19 may dramat­ic­ally shift voters toward mail ballot­ing. Further­more, we have seen a fairly steady climb in the use of mail-in ballots over the past quarter-century, and states have contin­ued to expand the use of all-mail elec­tions and by-mail absentee voting in recent years.

    In addi­tion, high turnout, a recent escal­a­tion in voter purges, and heightened risk of foreign inter­fer­ence may all contrib­ute to increased use of provi­sional ballots, which are a fail-safe option for voters who cannot confirm their eligib­il­ity at the polls for any number of reas­ons.
     
  • These are posit­ive, voter-friendly ballot­ing options, but they can take longer to canvass than regu­lar ballots cast in person on Elec­tion Day. For example, a number of states accept mail ballots that arrive after Elec­tion Day or offer voters an oppor­tun­ity to fix purpor­ted signa­ture discrep­an­cies on their absentee ballot. (Addi­tional states may do so in response to Covid-19.) Simil­arly, it takes time for elec­tion offi­cials to eval­u­ate the valid­ity of provi­sional ballots.
     

The Consequences: Increased partisan conflict over elec­tion outcomes and decreased trust in elec­tion outcomes.

  • During a recount in Flor­id­a’s 2018 Senate race, the even­tual winner, Rick Scott, repeatedly claimed without evid­ence that his oppon­ent was trying to steal the elec­tion through fraud. These claims were ampli­fied by partis­ans, includ­ing Pres­id­ent Trump. As a result, state law enforce­ment offi­cials were forced to weigh in to dispute claims of crim­inal activ­ity.

7. Recounts, Audits, and Election Contests Are Ways to Steal an Election

The Claim: Recounts, audits, and elec­tion contests are ille­git­im­ate attempts to undo a valid elec­tion result.

The Truth: Recounts, audits, and elec­tion contests are all normal parts of the elec­tions process that help to ensure that every valid ballot is coun­ted accur­ately.

  • A recount is exactly what it sounds like — a process to count the ballots cast in a close elec­tion again. Twenty states mandate auto­matic recounts if a small number of votes separ­ate the top candid­ates in the elec­tion, and 43 permit indi­vidu­als to peti­tion for a recount, accord­ing to the National Confer­ence of State Legis­latures.
     
  • Audits are a process to verify the accur­acy of vote totals, by compar­ing paper records of votes to elec­tronic vote tallies. Twenty-four states voter veri­fi­able paper records for all votes cast as well as post-elec­tion audits of paper records before certi­fy­ing elec­tion results. Partic­u­larly given the elec­tion secur­ity chal­lenges that have arisen in recent years, audits are a crucial compon­ent of respons­ible elec­tion admin­is­tra­tion.
     
  • Elec­tion contests are chal­lenges to elec­tion results. The bases for these chal­lenges, and the people permit­ted to bring them, vary from state to state and from office to office.
     
  • Because each of these processes can result in a differ­ent elec­tion outcome than the one projec­ted on elec­tion night, the elec­tion night winner has a strong incent­ive to seek to under­mine their legit­im­acy or to halt them alto­gether. These incent­ives will be espe­cially strong in 2020, given the stakes of the elec­tion.

The Consequences: Increased partisan conflict over and decreased trust in elec­tion outcomes.

  • In 2000, for example, GOP-organ­ized protest­ers stormed the Stephen P. Clark Govern­ment Center in down­town Miami and succeeded in shut­ting down the recount of Miami-Dade County’s pres­id­en­tial ballots. The so-called “Brooks Broth­ers riot” produced a partisan bene­fit for one side in the elec­tion. But it contrib­uted to the “voting wars” that have made voting rules a site of signi­fic­ant partisan conflict since 2000.

8. People Can’t Help People Vote

The Claim: Groups that help many voters cast their absentee ballots are engaged in illegal “ballot harvest­ing,” and laws that allow such assist­ance enable elec­tion fraud.

The Truth: Partis­ans use the pejor­at­ive “ballot harvest­ing” to criti­cize two very differ­ent sets of prac­tices: (a) illegal and ille­git­im­ate absentee ballot tamper­ing and (b) legal and legit­im­ate assist­ance to voters cast­ing their absentee ballots. Voter assist­ance is not evid­ence of fraud.

  • Ballot tamper­ing is illegal every­where. That includes prac­tices like steal­ing ballots from mail­boxes, filling out other people’s ballots without their consent and direc­tion, and chan­ging or throw­ing out other people’s ballots.
     
  • Most states allow certain indi­vidu­als — espe­cially family members, health-care providers, and legal guard­i­ans — to assist voters by collect­ing and submit­ting their absentee ballots. Many states allow a broader array of indi­vidu­als to provide ballot assist­ance. Where allowed, ballot collec­tion is not indic­at­ive of any malfeas­ance or fraud.
     
  • The biggest ballot tamper­ing scan­dal in recent memory was in connec­tion with the 2018 congres­sional elec­tion in North Caro­lin­a’s 9th congres­sional district. There, a GOP polit­ical oper­at­ive ran an oper­a­tion that collec­ted absentee ballots from voters and tampered with those ballots. This led to the North Caro­lina Board of Elec­tions order­ing a new congres­sional elec­tion in the district. Ballot collec­tion is illegal in North Caro­lina. Indeed, ballot tamper­ing scan­dals are not more common in states that allow ballot collec­tion.
     
  • Some partis­ans have tried to lever­age the North Caro­lina elec­tion fraud into an indict­ment of absentee ballot assist­ance laws by suggest­ing that ballot assist­ance prac­tices are all forms of ille­git­im­ate ballot harvest­ing. In partic­u­lar, they incor­rectly claim that the “ballot harvest­ing” that is illegal in North Caro­lina is actu­ally legal in Cali­for­nia because of a 2016 ballot collec­tion law that permits people other than family members to collect voters’ absentee ballots.

    This is false. Ballot assist­ance may be legal in Cali­for­nia, but ballot tamper­ing is illegal there — as it is every­where in the coun­try.

The Truth, Moreover: Absentee ballot assist­ance laws can be crit­ical life­lines for voters.

  • Twenty-seven states have absentee ballot assist­ance laws that permit voters to desig­nate someone other than a family member to return their absentee ballot, accord­ing to the National Confer­ence of State Legis­latures.
     
  • Some voters need this assist­ance in order to cast a ballot. For example, the Native Amer­ican Rights Fund has said, “Native voters, espe­cially tribal elders, often lack reli­able trans­port­a­tion and reside in geograph­ic­ally remote areas in which they rely upon friends and neigh­bors to pick up and return their mail.” As a result, barring third-party assist­ance with absentee voting “would effect­ively disen­fran­chise tens of thou­sands of Native voters.”

The Consequences: Lower levels of trust in elec­tions and more restrict­ive voting laws.

  • Like other claims of wide­spread fraud, attacks on “ballot harvest­ing” under­mine trust in the integ­rity of the elec­tions process.
     
  • In addi­tion, Arizona and Montana have enacted laws to sharply restrict third-party assist­ance to absentee voters in recent years. In Janu­ary 2020, the 9th U.S. Circuit Court of Appeals struck down Arizon­a’s restric­tion, hold­ing that it had a discrim­in­at­ory effect on Amer­ican Indian, Hispanic, and African Amer­ican voters in viol­a­tion of the Voting Rights Act and that it was passed for a discrim­in­at­ory purpose, in viol­a­tion of the Fifteenth Amend­ment. (This decision has been stayed pending Supreme Court review.)

    Accord­ing to the to the court, minor­ity voters were more likely than other voters to rely on assist­ance cast­ing their absentee ballots, for a vari­ety of reas­ons includ­ing issues with trans­port­a­tion and mail service.

9. We Need More Aggressive Purges to Clear Out All the Ineligible Voters

The Claim: Aggress­ive voter purges are needed because voter rolls are infec­ted with large numbers of ineligible voters.

The Truth: Claims that voter rolls are “dirty” are over­blown.

  • Many of the claims that juris­dic­tions have more voters on the rolls than eligible people in the juris­dic­tion appear to be based on a rudi­ment­ary compar­ison between U.S. Census popu­la­tion data, which is not designed to estim­ate the eligible voting age popu­la­tion, and county elec­tion stat­ist­ics, which are meas­ured at “book clos­ing” — the period imme­di­ately before an elec­tion, when regis­tra­tion rates are at their high-water mark. Federal courts have rejec­ted this approach, and many of the targeted juris­dic­tions have rebut­ted these claims.
     
  • Further­more, some of these claims have included “inact­ive” voters — those who have been flagged for poten­tial removal from the rolls — in the count of registered voters. Federal law, sens­ibly, requires juris­dic­tions to keep these voters on the rolls for two elec­tion cycles before purging them. This is a feature, not a bug: it helps to ensure that flagged voters have actu­ally changed addresses or other­wise become ineligible.

The Truth, Moreover: Claims of rampant inac­curacies in the voter rolls are part of a sustained pres­sure campaign to push elec­tion offi­cials to purge their rolls more aggress­ively. But aggress­ive purges can result in eligible voters being improp­erly kicked off the rolls.

  • For example, offi­cials and activ­ists have pushed the use of inter­state data-match­ing systems, includ­ing one system admin­istered by the Kansas secret­ary of state, to identify voters registered in more than one state. But the Kansas system has proven deeply flawed, in part because it matches voters using only their first name, last name, and date of birth, which is likely to produce false posit­ives in groups as large as statewide or multistate regis­tra­tion lists. (In Decem­ber 2019, Kansas suspen­ded the system, as part of a court settle­ment.)
     
  • There has also been an uptick in state efforts to purge noncit­izens, but the data states are using as the basis for these purges has not been consist­ently reli­able. Texas’s disastrous 2019 noncit­izen purge attempt illus­trates the point.

The Consequences: Purge numbers are grow­ing.

  • The Bren­nan Center has docu­mented a dramatic surge in purge rates since the Supreme Court gutted the Voting Rights Act (VRA) in 2013.
     
  • Counties that were previ­ously covered by Section 5 of the VRA — that is, counties in states with a history of voting discrim­in­a­tion — have purged people from the rolls at much higher rates than other counties have. The median purge rate between 2016 and 2018 in juris­dic­tions previ­ously covered by Section 5 was 40 percent higher than the purge rate in juris­dic­tions that were not covered.

The Consequences, Moreover: Improper purges can disen­fran­chise eligible voters, cause undue delays at the polls, and heighten distrust in our elec­tion systems.

  • In 2016, the New York City Board of Elec­tions purged hundreds of thou­sands of voters with little notice to voters or the public. On Elec­tion Day, thou­sands of voters showed up at the polls only to find that their regis­tra­tions had been deleted.
     
  • In 2019, the Texas secret­ary of state announced that there were 95,000 noncit­izens on the state’s voter rolls, includ­ing 58,000 who had voted illeg­ally. This claim, which was based on state driver’s license data, was false. A federal court halted purges based on the faulty inform­a­tion and the secret­ary of state even­tu­ally resigned over the debacle, but not before Pres­id­ent Trump ampli­fied the initial false claim, sowing distrust in the elec­tions process.
     
  • As noted above, claims that several Iowa counties had more voters on their rolls than eligible voters in the county also appeared ahead of the Demo­cratic Caucus in Janu­ary 2020. These claims were quickly debunked, but the confu­sion around the caucus vote count­ing gave them new life and gave partis­ans new oppor­tun­it­ies to ques­tion the integ­rity of the elec­tion.