Covid-19 has, in many ways, changed the voting process for many Americans and a large number of states are likely to see a substantial increase in the number of ballots cast by mail in the 2020 presidential election. As a result, voter fraud and election related offenses are front and center in many news cycles and are a topic of discussion among politicians and parties.
A. The Election Process
Elections in the United States are administered in a highly decentralized process through which individual states and local governments shape their own election laws, rules and regulations. 3,069 counties in the United States traditionally administer and fund elections at the local level, including the actual coordination and overseeing of the polling places and poll workers for all federal, state and local elections. State election laws are subject to constitutional principles concerning the right to vote, but the federal government is not in the business of conducting elections. Each state’s Supreme Court typically has the last word on state laws, however, in three cases recently brought to the spotlight, the United States Supreme Court had the final decision. These decisions may give some insight on how the Supreme Court may deal with certain election challenges and outline the boundaries for what it perceives to be jurisdictional limitations over a contested state issue.
B. Court Challenges
Earlier this week, the Supreme Court upheld a federal appellate court decision that rejected Democrat’s and voting rights groups’ efforts to extend the deadline for receipt of absentee ballots in Wisconsin.[1] The original district court decision allowed for ballots postmarked by election day to be counted if they were received up to six days after election day. Basically, the Court rejected the lower federal court’s ruling as unlawfully expanding state legislation.
Last week, the United States Supreme Court upheld a ruling by the Pennsylvania Supreme Court that allowed the counting of absentee ballots received as late as the Friday after Election Day by 5 p.m. so long as the ballots were postmarked by November 3rd.[2] This case may have presented an important factual difference in that the Pennsylvania case was analyzing a ruling by the highest court of the Commonwealth of Pennsylvania and not a federal court’s ruling. This proposition was expounded upon by Chief Justice Roberts in the Wisconsin challenge explaining that:
“While the Pennsylvania case implicated the authority of state courts to apply their own constitutions to election regulations, this case (Wisconsin) involves federal intrusion on state law-making processes. Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin”.[3]
It could be argued that the Supreme Court affirmed that federal courts should not be making last-minute changes to state election rules with these decisions. Interestingly, on October 28th, the Supreme Court unanimously, but temporarily, denied a request to reconsider its decision in the Pennsylvania matter after it was urged to do so by the PA GOP.[4] It is possible that the Supreme Court denied this request as it was considered previously decided- albeit by a 4-4 decision. That being said, Justice Alito made clear in his statement that the issue could be reopened after the election- so it appears to be a temporary denial to review the case. If the case is reviewed after the election, it will also be before the newly appointed Justice Coney-Barrett, who will be able to join in the deliberation unless she recuses herself.
Further amplifying this situation, on October 28th, the Supreme Court denied a GOP request to limit the time for the return of mail in ballots from three days past election day to nine days. [5] The North Carolina Board of Elections had originally agreed to extend the deadline for ballots for three days after Nov. 3rd due to COVID. It subsequently increased that deadline to nine days past Nov. 3rd with the approval of both the Board of Elections and federal courts. It may be that the pivotal factor in the North Carolina decision was the state agency approval by the Board of Elections which would could place it more in line with the Pennsylvania decision, giving deference to a state’s interpretation/implementation of its own state’s laws. This would place North Carolina and Pennsylvania on different footing than Wisconsin which was solely a federal court matter. However, the Court’s future handling of the “on-hold” Pennsylvania matter seems to be looming as a consequential decision.
All of these issues are central to voting and voting rights but do not necessarily concern voter fraud. Parties may argue that they involve judicial activism or voter-disenfranchisement but they are not allegations that votes are being falsified or manufactured.
C. Federal Prosecution of Election Offenses
So what is voter fraud? And what does the federal government look at when it is analyzing an election? Election related offenses may be subject to federal prosecution when: (a) a ballot includes one or more federal candidates; (b) election or polling place officials abuse their office; (c) the conduct involves false voter registration; (d) the crime is motivated by hostility toward minority protected classes; or (e) the activity violates federal campaign finance law.[6] The Department of Justice Manual regarding federal prosecution of election offenses is a good source for additional information regarding Department policy for prosecuting election fraud and is available online.[7]
D. Three Main Categories of Voting Fraud in Texas
In Texas, most election offenses fall into three categories: (1) illegal voting; (2) voter assistance fraud; and (3) mail ballot fraud.
- Illegal voting generally occurs when a person votes who is not legally qualified to do so. For example, voting as a non-United States citizen in an election can have severe consequences. In 2017 a Tarrant County jury convicted a women of two counts of illegal voting for voting as a non-citizen in two elections. She was sentenced to eight years in prison but was granted parole in December of 2019 after serving nine months of her sentence.[8]
- Voter assistance fraud generally involves exploiting the legitimate voter assistance process to illegally influence a vote. In Texas, voters are entitled to receive assistance at the polling location if they (1) cannot read or write, (2) have a physical disability that prevents them from reading or marking a ballot, or (3) cannot speak English, or communicate only with sign language, and want assistance in communication with election officials.[9] Voters can choose to be assisted by any person who is not an election worker, two election workers on election day, or one election worker during early voting. In August of 2006, a Corpus Christi woman plead guilty to two counts of illegal voting. Prosecutors alleged that the defendant provided assistance to voters in a primary election by marking ballots without voters’ consent at the polling location.[10]
- Mail ballot fraud generally involves vote harvesting that exploits the process to vote by mail. Not all voters can vote by mail in Texas. To be eligible to vote by mail, you must be: (1) 65 years or older; (2) sick or disabled; (3) out of the county on election day, or (4) confined in jail, but otherwise eligible to vote.[11] Mail ballot fraud typically involves harvesting schemes where individuals help to saturate a precinct with mail in ballots and target the individuals who receive them in order to obtain votes for the harvester’s candidate through intimidation, compensation, and other illegal means.
E. Texas Poll Watchers: Who they are and what they can and cannot do
In Texas, poll watchers do exactly what their names suggests – they watch what goes on at polls and generally monitor for perceived voting irregularities or other violations of state election law. Poll watchers are not just random people who show up to a polling location to watch its activities. Instead, all legitimate poll watchers have been formally appointed, subject to certain eligibility requirements, by somebody with an official interest in the election – e.g., a candidate or political party. They are generally authorized to watch any activity that occurs at the polling location but may not be present at voting stations while voters cast ballots (unless the voter is being assisted by an election officer). Poll watchers cannot talk to voters, communicate with voters in any way regarding an election, leave without the election judge’s permission, or be inside a voting booth. They may report any perceived irregularities or violations of state laws to the election judge or clerk at the precinct.
As Americans, we all have an interest in preserving the integrity of our government and the election process. To that end, every validly cast vote must count equally. If you have questions regarding how to vote in the 2020 election, consult with election officials in your county. You may find a link to your Texas County website here: https://www.sos.state.tx.us/elections/voter/links.shtml#County.
[1] Democratic National Committee v. Wisconsin State Legislature, 529 U.S. ___ (2020).
[2] Scarnati v. Boockvar, No. 20A53; Republican Party of Pennsylvania v. Boockvar, No. 20A54.
[3] Supra note 1.
[4] Republican Party of Pennsylvania v. Boockvar, 529 U.S. ___ (2020).
[5] Moore v. Circosta, 529 U.S. ___ (2020).
[6] https://www.fbi.gov/news/pressrel/press-releases/fbi-warns-voters-about-election-crimes-ahead-of-the-november-2020-election
[7] https://www.justice.gov/criminal/file/1029066/download
[8] https://www.texasattorneygeneral.gov/news/releases/ag-paxton-court-appeals-upholds-voter-fraud-conviction-rosa-ortega
[9] https://www.votetexas.gov/voters-with-special-needs/
[10] http://www.ntxe-news.com/cgi-bin/artman/exec/view.cgi?archive=17&num=36363&printer=1
[11] https://www.sos.texas.gov/elections/voter/reqabbm.shtml