May 15th 2020

By Max Feldman

Brennan Center For Justice

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 eight 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. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

Posted with permission