The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Republican election attorney Benjamin Ginsberg spent his career helping Republican candidates get elected. As part of those efforts, he was on the lookout for voter fraud. As he details in a Washington Post op-ed, such fraud is very hard to find.
The truth is that after decades of looking for illegal voting, there's no proof of widespread fraud. At most, there are isolated incidents — by both Democrats and Republicans. Elections are not rigged. Absentee ballots use the same process as mail-in ballots — different states use different labels for the same process.
The Trump 2016 campaign, of which I was not a part, could produce no hard evidence of systemic fraud. Trump established a Presidential Advisory Commission on Election Integrity in 2017 to expose all the fraud he maintains permeates our elections. He named the most vociferous hunters of Democratic election fraud to run the commission. It disbanded without finding anything.
The Heritage Foundation Election Fraud Database has compiled every instance of any kind of voter fraud it could find since 1982. It contains 1,296 incidents, a minuscule percentage of the votes cast. A study of results in three states where all voters are mailed actual ballots, a practice at the apex of the president's outrage, found just 372 possible cases of illegal voting of 14.6 million cast in the 2016 and 2018 general elections — 0.0025 percent.
If anything, Ginsberg goes easy on those who make broad election fraud allegations.
When Kris Kobach was Kansas Secretary of State, he pushed election law reforms premised on the need to root out election fraud and, in particular, prevent voting by non-citizens. When these restrictions were challenged in court, his case crumbled. Given the opportunity to present evidence and expert testimony, Kobach was unable to substantiate his fears of stolen elections. Kobach was eventually held in contempt and sanctioned by the court.
The evidence of widespread election fraud is woefully thin. When it happens, it may affect local races (where the total vote counts are much smaller). It is impossible to prove election fraud is not happening, as it is impossible to prove a negative. (To those convinced we have a problem, the lack of evidence only shows that those stealing elections are even more devious than we thought!) While election administration in parts of the country may be rickety and inefficient, there is no reason to think national elections are compromised, let alone that the Presidential race could be stolen.
That said, when efforts to subvert election laws are uncovered, they should be prosecuted aggressively. Election law violations should be taken seriously. With that in mind, here's more from Ginsberg's op-ed:
The only hitch is that the candidate is President Trump.