SUMMARY All 50 states have bans on electioneering in and near polling places. By contrast, there are no prohibitions on electioneering in voters’ homes—which is what happens all too often with absentee ballots and voting by mail. This makes voters vulnerable to intimidation and unlawful “assistance,” as well as pressure by candidates, campaign staffers, political party activists, and political consultants—all of whom have a stake in the outcome of the election—to vote in the campaign’s interests, not their own. Absentee ballots are also more vulnerable to being misdirected, stolen, forged, and altered. This Legal Memorandum details four cases studies of election fraud committed through absentee and mail-in voting.
KEY TAKEAWAYS Universal absentee or mail-in voting leaves America’s electoral system vulnerable to fraud, forgery, coercion, and voter intimidation. Uncovering instances of voter fraud is difficult, and those who commit fraud are often able to get away without repercussions. Preventing voter fraud is crucial for protecting election integrity, ensuring public confidence in the election system, and maintaining a stable democratic republic.
No one disputes the need for absentee or mail-in ballots for people who cannot make it to their neighborhood polling places on Election Day, such as because they are sick, physically disabled, or serving the country abroad, or because they cannot make it to the polls for some other legitimate reason. But changing the U.S. election system to no-fault absentee balloting, in which anyone can vote with a mail-in ballot without a reason, or to mail-only elections, in which voters no longer have the ability to vote in person, is an unwise and dangerous policy that would disenfranchise voters and make fraud far easier. Mail-in ballots are completed and voted outside the supervision and control of election officials and outside the purview of election observers, destroying the transparency that is a vital hallmark of the democratic process. The many cases of proven absentee-ballot fraud in The Heritage Foundation’s Election Fraud Database1 The Heritage Foundation’s Election Fraud Database presents a sampling of recent proven instances of election fraud from across the country. This database is not an exhaustive or comprehensive list. It does not capture all cases and certainly does not capture reported instances that are not investigated or prosecuted. But it demonstrates the vulnerabilities in the election system and the many ways in which fraud is committed. See https://www.heritage.org/voterfraud. show that mail-in ballots are susceptible to being stolen, altered, forged, and forced. In fact, a 1998 report by the Florida Department of Law Enforcement concluded that the “lack of ‘in-person, at-the-polls’ accountability makes absentee ballots the ‘tool of choice’ for those inclined to commit voter fraud.”2“Voter Fraud Issues: A Florida Department of Law Enforcement Report And Observations,” Florida Department of Law Enforcement (Jan. 5, 1998), p. 2, http://www.ejfi.org/Voting/Voting-9.htm (accessed July 9, 2020). All states have bans on electioneering in and near polling places. In contrast, there are no prohibitions on electioneering in voters’ homes.3 For a complete listing of state statutes banning electioneering in or near polling places, see “State Laws Prohibiting Electioneering Activities Within a Certain Distance of the Polling Place,” National Association of Secretaries of State (August 2016), https://www.nass.org/sites/default/files/surveys/2017-10/state-laws-polling-place-electioneering-2016.pdf (accessed July 9, 2020). This makes voters vulnerable to intimidation and unlawful “assistance,” as well as pressure by candidates, campaign staffers, political party activists, and political consultants—all of whom have a stake in the outcome of the election—to vote in the campaign’s interests, not their own. Thus it also potentially destroys the secrecy of the ballot process, another basic and important hallmark of American elections for more than a century. This type of electioneering is a particular problem in the 27 states that allow “vote harvesting,”4 For a detailed explanation of the problems with vote harvesting by third parties, see Hans A. von Spakovsky, “Vote Harvesting: A Recipe for Intimidation, Coercion, and Election Fraud,” Heritage Foundation Legal Memorandum No. 253 (Oct. 8, 2019), https://www.heritage.org/sites/default/files/2019-10/LM253_0.pdf. as well as in the District of Columbia. These jurisdictions expressly allow any third party to pick up a completed absentee ballot from the voter and deliver it to election officials. Twelve of these states “limit the number of ballots an agent or designee may return,” but there is no information on whether that limitation is enforced.5The 12 states are Arkansas, Colorado, Georgia, Louisiana, Maine, Minnesota, Montana, Nebraska, New Jersey, North Dakota, South Dakota, and West Virginia. Vote harvesting is such a common practice in some states that harvesters (or ballot brokers) are paid by campaigns to collect absentee ballots from voters and “even have their own region-specific names. In Florida, they are known as ‘boleteros.’ In Texas, they are called ‘politiqueras.’”6 Eric Eggers, Ballot Fraud, American-Style…and Its Bitter Harvests, RealClearInvestigations (Dec. 13, 2018), https://www.realclearinvestigations.com/articles/2018/12/12/ballot_fraud_american-style_and_its_bitter_harvests.html (accessed Sept. 19, 2019). The differing approaches to the return of absentee ballots can be seen in the contrast between, for instance, North Carolina and California. North Carolina allows (apart from the voter) only “a voter’s near relative or the voter’s verifiable legal guardian” to return an absentee ballot.7 N.C.G.S.A. § 163A–1298 and 1310. California had a similar law, but amended it in 2016, effective in the 2018 election.8AB 1921. Prior to the change, only the relatives of a voter or someone living in the same household could return an absentee ballot.9Luis Gomez, What Is “Ballot Harvesting” and How Was It Used in California Elections? San Diego Union-Tribune (Dec. 4, 2018), https://www.sandiegouniontribune.com/opinion/the-conversation/sd-what-is-ballot-harvesting-in-california-election-code-20181204-htmlstory.html (accessed Sept. 19, 2019). California eliminated that restriction and now allows a voter to “designate any person to return the ballot” (emphasis added), exposing California residents to intimidation and pressure in their homes by representatives of candidates, campaigns, and political parties.10Cal. Elections Code § 3017. Mail-in ballots certainly make illegal vote buying easier since the buyer can ensure that the voter is voting the way he is being paid to vote, something that cannot happen in a polling place. This is illustrated by the 2019 conviction of a city council candidate in Hoboken, New Jersey. Frank Raia was convicted for “orchestrating a widespread scheme” that targeted and bribed low-income residents for their absentee ballots in a 2013 election. Sources told a local reporter that “the operation began in 2009, when changes in state law eased requirements for voting by mail. Prior to that a resident needed to provide a reason why they couldn’t make it to the poll in order to get an absentee ballot.”11 Corey W. McDonald, Developer’s Conviction for Voter Fraud Reverberates Throughout Hoboken, The Jersey Journal (June 26, 2019), https://www.nj.com/hudson/2019/06/developers-conviction-for-voter-fraud-raises-questions-of-vote-by-mail-ballots-in-hoboken.html (July 9, 2020). Mail-in elections and absentee ballots also subject the election process and the votes of the public to the problem of ballots being misdirected or not delivered by the Postal Service. According to a Public Interest Legal Foundation analysis of reports filed by the U.S. Election Assistance Commission (EAC) on the 2012, 2014, 2016, and 2018 elections, more than 28 million mail-in ballots effectively disappeared—their fate is listed as “unknown” by the EAC based on survey data sent to the EAC by state election officials.12 “28.3M Mail Ballots Went Missing from 2012–2018 Elections,” Public Interest Legal Foundation, https://publicinterestlegal.org/files/Mail-Voting-2012_2018-1P.pdf (accessed July 9, 2020). The biennial Election Administration and Voting Survey Reports published by the U.S. Election Assistance Commission can be found here: https://www.eac.gov/research-and-data/studies-and-reports (accessed July 9, 2020). The EAC defines “unknown” as mail-in ballots that “were not returned by the voter, spoiled, returned as undeliverable, or otherwise unable to be tracked by your [state] office.”13“2018 Election Administration and Voting Survey (EAVS),” U.S. Election Assistance Commission, https://www.eac.gov/sites/default/files/eac_assets/1/6/2018_EAC_Election_Administration_and_Voting_Survey_Instrument.pdf (accessed July 9, 2020). The EAC lists another 2.1 million ballots as “undeliverable,” meaning they were returned by the U.S. Postal Service because the registered voter did not live at the registered address. An example of the risk posed by relying on mail delivery for the important task of making sure that a voter’s ballot gets into the ballot box is illustrated by the April 7, 2020, primary election in Wisconsin. News reports indicated that many voters never received the absentee ballots they had requested, or received them too late. After the election, “3 large tubs of absentee ballots” were discovered in a mail-processing facility: They were apparently never delivered.14 Ruthie Hauge, “Postal officials investigating Wisconsin absentee ballots that were never delivered,” Wisconsin Public Radio (April 9, 2020), https://madison.com/ct/news/local/govt-and-politics/postal-officials-investigating-wisconsin-absentee-ballots-that-were-never-delivered/article_fecca2ca-7a8d-11ea-af47-87255ac26d72.html (accessed July 9, 2020); Patrick Marley, Alison Dirr, and Mary Spicuzza, Wisconsin Is Discovering Problems with Absentee Ballots, Including Hundreds that Were Never Delivered, Milwaukee Journal Sentinel (April 8, 2020), https://www.jsonline.com/story/news/politics/elections/2020/04/08/wisconsin-election-3-tubs-ballots-found-mail-processing-center/2971078001/ (accessed July 9, 2020). Similarly, “thousands of residents who requested an absentee ballot” for the June 2, 2020, primary election in the District of Columbia never received their requested absentee ballots.15Mark Joseph Stern, “D.C.’s Election Was an Unmitigated Disaster,” Slate.com (June 3, 2020), https://slate.com/news-and-politics/2020/06/dc-election-curfew-police-long-lines.html (accessed July 9, 2020). As a result, there were long lines at polling places when those voters showed up at the radically reduced number of polling places opened by the DC government. According to the EAC reports, another 1.3 million completed absentee or mail-in ballots were rejected by election officials in the last four federal elections for not being in compliance with relevant state rules and regulations, including signature mismatches.16 News release, “Report: 28 Million Mail Ballots Went Missing in Past Decade,” Pubic Interest Legal Foundation (April 13, 2020), https://publicinterestlegal.org/blog/report-28-million-mail-ballots-went-missing-in-past-decade/ (accessed July 9, 2020). This illustrates one of the other key drawbacks of absentee ballots. Unlike a polling place where there are election officials who can answer questions or resolve any problems an individual may have with her registration or other issues, there is no election supervisor in a voter’s home who can ensure that all of the information required by state law for an absentee ballot has been properly completed by the voter. This leads directly to the disenfranchisement of otherwise eligible voters. States, such as Washington and Oregon, that have mail-only elections have similar problems. According to the EAC reports on the past four federal elections, Oregon listed more than 170,000 ballots as “undeliverable,” almost 29,000 ballots as “rejected,” and 871,737 ballots as “unknown.” Furthermore, in a survey of voters in just one Oregon county by an assistant professor at Portland State University, 5 percent of voters admitted that “other people marked their ballots, and 2.4% said other people signed their ballot envelopes.”17 A “Modern” Democracy That Can’t Count Votes, Los Angeles Times (Dec. 11, 2000), https://www.latimes.com/archives/la-xpm-2000-dec-11-mn-64090-story.html (accessed July 9, 2020). The professor suspected that “the real number is higher, because people are reluctant to admit being party to a crime,” but if that percentage held for the rest of the state, it would mean tens of thousands of illegal ballots.18Id. The professor told the Los Angeles Times that she did not have much faith in the process since she is able to forge her husband’s signature perfectly.19Id. Illustrating this point, when the author of this Legal Memorandum worked for the Department of Justice, he attended a meeting of state election officials in Oregon. As the head of Oregon elections was telling the audience about how good the state’s security was, particularly its signature matching protocols, an election official from another state told the author that his sister-in-law, who lived in Oregon, had successfully voted three times without detection in the past election. She voted her ballot, her husband’s ballot after forging his signature, and a third ballot that had arrived for her by mail under her maiden name. The experience of a Heritage Foundation colleague shows the type of problems that occur in a state such as Washington with mail-only elections when voter registration rolls are inaccurate. She grew up in King County, but has not lived in the state since 2012, and therefore is not an eligible voter in Washington. One of her sisters left Washington 10 years ago, registered in another state, and is also not eligible to vote in Washington. Another sister, who has Downs syndrome, has never been registered to vote by her family. Yet every time there is an election, ballots are mailed to her parents’ home for all three sisters. Those ballots could easily be completed and returned by the parents, or forwarded to the sisters who live out of state to be completed and returned, and election officials would be none the wiser. The colleague’s father is particularly concerned that his daughter with Downs syndrome was somehow registered without his knowledge: “Someone could easily take advantage of her and cast a vote under her name.” In fact, in the 2018 election, the EAC reports that King County had more than 13,000 ballots listed as “undeliverable,” illustrating the unreliability of its voter registration list, while the fate of 352,624 ballots was listed as “unknown.”20 News release, “Report: 28 Million Mail Ballots Went Missing in Past Decade,” Pubic Interest Legal Foundation (April 13, 2020), https://publicinterestlegal.org/blog/report-28-million-mail-ballots-went-missing-in-past-decade/ (accessed July 9, 2020). That “unknown” category no doubt includes the ballots the county mistakenly mailed to the three sisters. To understand the problems with, and the vulnerabilities of, absentee or mail-in ballots, it is useful to examine cases where fraud and voter intimidation have been proven. Here are four cases that illustrate many of these issues.21 For other Heritage case studies by this author on election fraud, including absentee ballots, see “Absentee Ballot Fraud: A Stolen Election in Greene Country, Alabama,” Heritage Foundation Legal Memorandum No. 31 (Sept. 5, 2008), https://www.heritage.org/election-integrity/report/absentee-ballot-fraud-stolen-election-greene-county-alabama; “Where There’s Smoke, There’s Fire: 100,000 Stolen Votes In Chicago,” Heritage Foundation Legal Memorandum No. 23 (April 16, 2008), https://www.heritage.org/election-integrity/report/where-theres-smoke-theres-fire-100000-stolen-votes-chicago; ”Stolen Identities, Stolen Votes: A Case Study in Voter Impersonation,” Heritage Foundation Legal Memorandum No. 22 (March 10, 2008), https://www.heritage.org/report/stolen-identities-stolen-votes-case-study-voterimpersonation; and “Election Fraud in the 2008 Indiana Presidential Campaign: A Case Study in Corruption,” Heritage Foundation Legal Memorandum No. 111 (Jan. 13, 2014), https://www.heritage.org/election-integrity/report/election-fraud-the-2008-indiana-presidential-campaign-case-study. 1. School Board Election, Fresno County, California—November 5, 1991 With its recent change of law to allow vote harvesting by candidates, political parties, campaign organizations, and political guns for hire, California seems to have forgotten the lessons it should have learned from Gooch v. Hendrix, a 1993 decision by the California State Supreme Court.22 Gooch v. Hendrix, 5 Cal.4th 266 (1993). The court in that case overturned the results of consolidated school board elections in Fresno County due to fraud and “tampering” with absentee ballots.23Gooch, 5 Cal.4th at 285. The November 5, 1991, election was for school board positions in one high school and four elementary school districts. In essence, a local political organization, the Fresno Chapter of the Black American Political Association of California (BAPAC), took over the voter registration and absentee balloting process, completely controlling the application for, delivery to, completion of, and return of absentee ballots of minority voters. Additionally, a trial court found evidence of “fraud and tampering” with the absentee ballots by BAPAC. BAPAC had an elaborate strategy orchestrated by Frank Revis, who headed BAPAC’s Voter Education Project, to deliver the absentee ballots necessary to win the 13 seats it had targeted in these school districts. The trial court found that the plan that BAPAC volunteers and paid staff carried out was to:
Visit registered and unregistered voters’ residences to get them to sign both a voter registration form and an absentee-ballot request form, under the proviso that BAPAC would deliver those forms to election officials and the requested ballot would be sent to BAPAC, not the voter;
Voters were told to leave blank the part of the absentee-ballot request form in which it asked for the address to which the absentee ballot should be sent;
BAPAC took the forms to its headquarters and filled in the address to which the absentee ballot should be sent—the address for the Voting Education Project, the home residence of Frank Revis;24When third parties have access to completed absentee-ballot request forms, it gives them a sample of a voter’s signature, making forgery of the signature on an absentee ballot easy.
When BAPAC received the absentee ballots from election officials, BAPAC staff delivered the ballots to voters’ homes;
Voters were “encouraged to vote in the presence” of the BAPAC vote harvesters, who then collected the completed ballot for delivery to election officials.25Id. at 272–273.
Given BAPAC’s unsupervised access to all of these absentee ballots, it is unsurprising that the group took advantage of voters, who, according to the BAPAC president, were targeted through a “highly selective process.”26 Id. at 281. Numerous witnesses testified at a five-day trial about their experiences with BAPAC that illustrate all of the problems with, and vulnerabilities of, the absentee balloting process. The trial included the testimony of:
A voter who did not sign the absentee-ballot request form, nor the envelope for the absentee ballot, which had been sent to BAPAC; her signatures had been forged;
A voter who was “urged” by a BAPAC solicitor (through a translator) to “sign for the schools” and that it was “all right” for his daughter to sign his absentee-ballot application;
Another voter who said that three BAPAC staffers came to his door late at night, “told him for whom to vote,” and “were emphatic that he not seal his ballot.” They returned to his house when he was not home because he had not signed the ballot and told his wife “to sign her husband’s name for him”;
A voter who was told to sign a “petition for a free breakfast” that was actually an absentee-ballot request form—an absentee ballot was later mailed to election officials by BAPAC “ostensibly by him”; and
A voter who was visited by a candidate being supported by BAPAC along with a BAPAC staffer. The staffer filled out an absentee ballot without the voter’s consent, permission, or consultation.27Gooch, 5 Cal.4th at 274.
Election officials sent almost 1,300 “requested” absentee ballots to BAPAC; 269 were never returned, and BAPAC could not account for what had happened to them. Of the remaining 1,023 ballots, 63 were disqualified for invalid signatures (signatures that did not match voter signatures on file); 93 were disqualified because there “had been fraud and tampering” with those ballots; and the rest were disqualified due to unlawful and illegal conduct by BAPAC, including using its own address for the absentee-ballot delivery address instead of that of the voters.28 Id. at 275–276. One of the problems noted by the court, a problem which applies to many election fraud cases, is that “once illegal ballots are cast and comingled with the legal ballots, they cannot be traced to reveal for whom they were cast.”29 Id. at 277. In discussing the applicable law, the court referenced another fraud case in which votes were disqualified because the voters were nonresidents and others had been made illegal offers by city officials if they voted in favor of a city consolidation. See Canales v. City of Alviso, 3 Cal.3d 118 (1970). But the election ended up being overturned by the California Supreme Court because the “widespread illegal voting practices that permeated this election—including fraud and tampering” with absentee ballots and other “illegal votes affected the outcomes of the consolidated elections.”30Gooch, 5 Cal.4th at 285. 2. Mayoral Election, Miami, Florida—November 4, 1997 In the Miami mayoral election held on November 4, 1997, incumbent Joe Carollo won a plurality in a field of five candidates, but was 155 votes short of winning a majority. Carollo won a majority of the in-person precinct votes, but his challenger, Xavier Suarez, won a majority of the absentee ballots; Carollo “would have won outright on Nov. 4” if not for “Suarez’s lopsided advantage in absentees.”31 Joseph Tanfani and Karen Branch, $10 Buys One Vote: Dozens Cast Votes in Miami Mayoral Race–for $10 Each, Miami Herald (Jan. 11, 1998). One indicator of possible election fraud is when the ratio of absentee ballots cast for candidates is substantially different than the ratio of votes they received through in-person voting. Carollo then lost the run-off election on November 13 when Suarez received two-thirds of the absentee votes cast in the election. However, the November 4 election was overturned, and Carollo was returned to office, after a court found evidence of widespread, massive fraud involving 5,000 absentee ballots.32Will Lester, “Court: Carollo Is Mayor of Miami,” Associated Press (March 11, 1998). A Miami-Dade County grand jury in 2012 summarized what happened: In 1997, the City of Miami had one of its most memorable elections. The mayoral election for that year was plagued with widespread absentee ballot fraud. Many absentee ballots were filled out by boleteros, … one absentee ballot was cast in the name of a voter who was already dead, … charges were filed against fifty-five (55) persons, including a City of Miami Commissioner (charged with being Accessory After the fact to Voter Fraud), his Chief of Staff, and the Chief of Staff’s father. The Commissioner, Chief of Staff and the father were all convicted and sentenced to jail. Collectively, findings of guilt were entered against fifty-four (54) of the fifty-five (55) defendants and one was sent to a pretrial diversion program. On the civil side in a lawsuit filed by the mayoral candidate who lost the election, the judge found that fraud was involved in so many of the absentee ballots that he threw them out. That action resulted in the losing candidate being declared the winner of that mayoral election.33Final Report of the Miami-Dade County Grand Jury, State Attorney Katherine Fernandez Rundle, Circuit Court of the Eleventh Judicial Circuit of Florida in and for the County of Miami-Dade, Spring Term A.D. 2012 (Dec. 19, 2012), p. 1, https://www.miamisao.com/publications/grand_jury/2000s/gj2012s.pdf (accessed July 9, 2020). As the grand jury explained in a footnote, and as previously mentioned, boleteros “roughly translated, means ‘ticket-person’ and is used for a person who assists in collecting absentee ballots, primarily helping elderly and disabled voters.” As case after case proves, all too often these boleteros do not just assist voters—they fill out the voters’ ballots or intimidate and pressure voters to vote for the candidates who are paying the boleteros to collect the ballots. Others go even further and alter the choices of the voters or forge witness and voter signatures, much of which seemed to have happened in the Miami case. The Florida state court of appeals that upheld the findings of the trial court noted that the 1997 election was overturned because the evidence showed an extensive “pattern of fraudulent, intentional and criminal conduct that resulted in such an extensive abuse of the absentee ballot laws that it can fairly be said that the intent of these laws was totally frustrated.”34 In Re the Matter of the Protest of Election Returns and Absentee Ballots in the November 4, 1997 Election for the City of Miami, Florida, 707 So.2d 1170, 1171 (3d Dist. Ct. of Appeal of Fla. 1998). The fraud was so pervasive that “the integrity of the election was adversely affected.”35Id. at 1172. Miami Commission District 3 was the focal point of the fraud; in fact, the district “was the center of a massive, well-conceived and well-orchestrated absentee ballot voter fraud scheme.”36 Id. at 1172. The scheme included stolen ballots, ballots cast by voters using false registration addresses, ballots falsely witnessed, and hundreds of ballots cast that violated state statutory requirements or were “procured or witnessed by the 29 so-called ‘ballot brokers’ who invoked their privilege against self-incrimination instead of testifying at trial.”37Id. at 1172. One of the Suarez volunteers criminally charged in the case was caught “trying to buy fake absentee ballots that used the names of dead people” who were still on the voter registration roll, demonstrating the mischief that can be caused by the failure of election officials to maintain the accuracy of their voter rolls.38 Will Lester, “Court: Carollo Is Mayor of Miami,” Associated Press (March 11, 1998). The ruling by the trial court also cited “witness after witness” who testified to “a catalogue of abuses that included ballots cast by persons who did not ask for an absentee ballot, who did not live in [Miami] or did not know the person who supposedly witnessed their signatures.”39Donald P. Baker, New Mayoral Election Is Ordered for Miami, The Washington Post (March 5, 1998). In a description that correctly summarizes the effect that fraud has on all of the voters in an election, the trial court concluded that the absentee-ballot fraud in the Miami mayor’s race “literally and figuratively, stole the ballot from the hands of every honest voter in the City of Miami.”40 So.2d at 1172. Much of the wrongdoing in the election was uncovered through investigative reporting by the Miami Herald, which won a Pulitzer Prize in 1999 for this reporting—quite a contrast to the work of so many in the media today, who seem to spend most of their time trying to deny that election fraud occurs.41 Pulitzer Prizes, https://www.pulitzer.org/prize-winners-by-year/1999 (accessed July 9, 2020). Among the findings of the Miami Herald’s extensive, in-depth investigation were:42 This summary of the findings of the Miami Herald’s investigation are from the series of articles the newspaper published that were considered by the Pulitzer board, including: Joseph Tanfani and Karen Branch, “$10 Buys One Vote: Dozens Cast Votes in Miami Mayoral Race–for $10 Each” (Jan. 11, 1998); Karen Branch et al., “The Outsiders: Voters Crossed the Line in Miami Non-residence No Bar at Polls” (Feb. 1, 1998); Karen Branch et al., “Dubious Tactics Snared Votes for Suarez, Hernandez” (Feb. 8, 1998); Karen Branch, Dan Keating, and Elaine DeValle, “Some Miami Employees Crossed the Line to Vote” (Feb. 9, 1998); Herald Special Report, “Felons Vote, Too–But It’s a Crime: Killers and Thieves Cast Miami Ballots” (Feb. 15, 1998); Joseph Tanfani, Karen Branch, and Manny Garcia, “Suarez Adviser Investigated in Vote Buying: He Supplied Cash, Ran Scheme, Witnesses Say” (Feb. 22, 1998); and Andres Viglucci, “Nonprofit Agency Collected Absentee Ballots” (April 5, 1998). All of these articles are available at https://www.pulitzer.org/winners/staff-44 (accessed July 9, 2020). See also Manny Garcia and Tom Dubocq, Unregistered Votes Cast Ballots in Dade; Dead Man’s Vote, Scores of Others Were Allowed Illegally, Miami Herald (Dec. 24, 2000).
Volunteers, including a former food stamp worker, who pressured elderly food-stamp recipients into voting for Suarez;
Inner-city, “poor and homeless” voters who were transported in “white vans and beat-up cars” to County Hall to vote by absentee ballot43Some states have what is termed “in-person” absentee balloting where a person can vote using an absentee ballot at the county government’s election department prior to Election Day. and then to the “back lot at St. John Baptist Church” where they were paid $10 apiece for their votes by “a man with a wad of cash”;
Among the numerous witnesses to this vote-buying operation was one who lived in an apartment overlooking the church lot (and took $10 himself) who estimated that the operation, which went on all day, paid off “300 or 400 people”;
The man “with a wad of cash” admitted that he had participated in “two or three” such vote-buying schemes in the past, a clear indication that this type of fraud was not unique to the 1997 mayor’s race;
Fraudulent absentee ballots coming from homes of supporters of a commissioner involved in the fraud;
A man who signed as a witness the absentee ballot of a voter who had been dead for four years, and who gathered dozens of other fraudulent ballots; that same dead voter had “voted three other times since his burial in a pauper’s grave”;
Other dead Miamians voted, including a Haitian immigrant (and U.S. citizen) who voted in his first and only election in 1996; he died in May 1997, and his registration was cancelled by election officials; however, his name was “resurrected” at a polling place in the mayor’s race when his name was “handwritten on…the precinct voter roll, along with an obvious forgery of his signature”;
Many votes by nonresidents, including employees of the city, “even though their homes are miles outside city limits”; “records show that many had been voting for years, in election after election—cancelling the votes of real Miami residents and taxpayers”;
Campaign workers who “registered people to vote at addresses where they didn’t live, … punched44In 1997, Miami was still using punch card voting machines; “punching” the ballot means a hole was punched in the punch card with a stylus next to the candidate’s name—this is how punch card ballots were completed. voters’ absentee ballots without permission, … cast ballots in the names of people who insist they did not vote, … signed dozens of ballots as witnesses even though they weren’t present when the voters signed the envelopes”;
Similar behavior by a nonprofit organization barred by law from engaging in political activity that had received two million dollars in grants from city officials, including completing absentee ballots without the permission of voters;
Elderly voters who said “someone cast ballots in their names” and voters who said “they didn’t vote” and that the “signatures on the [absentee] ballots are forgeries”;
Six adult members of the same family, registered at the same address in Miami, all of whom voted in the election even though only one of them lived in Miami (this was just one of numerous such examples); and
Votes by convicted felons who had not yet regained their right to vote, including muggers, con artists, car thieves, robbers, drug traffickers, murderers, a flasher who beat his cellmate to death, and an ex-Miami detective who “covered up the murder of a drug dealer.”
Although this case concentrated on absentee ballots, the Miami Herald’s investigation found that dozens of “ineligible voters came and voted at the poll,” too. One poignant story uncovered by the Miami Herald demonstrates how elderly and disabled voters can easily be manipulated and pressured in their homes, hospitals, or nursing homes where there are no election officers or poll watchers to supervise or observe the voting process. “I was taken advantage of” Ada Perez told the investigative reporters. A campaign operative tracked down Perez, 70, at the hospital where she was recovering from a severe stroke. She described how the operative “badgered her to vote for Suarez, then finally took her ballot and punched it for her.” Her “eyes welling with tears,” Perez said her “vote was stolen…. They know our eyesight is not good and we are not well. What kind of person would take advantage of the elderly?”45 Karen Branch et al., Dubious Tactics Snared Votes for Suarez, Hernandez, Miami Herald (Feb. 8, 1998). Although the trial court had ordered a new election due to the widespread fraud, the court of appeals overruled that decision and instead reinstated Carollo as the mayor since he won a majority of the votes once the fraudulent ballots were discounted. The court said that the proper remedy “and the public policy of the State of Florida” in the face of “massive absentee voter fraud” was “to not encourage such fraud” by holding a new election: Rather, it must be remembered that the sanctity of free and honest elections is the cornerstone of a true democracy…. [W]ere we to approve a new election as the proper remedy following extensive absentee voting fraud, we would be sending out the message that the worst that would happen in the face of voter fraud would be another election…. Further, we refuse to disenfranchise the more than 40,000 voters who, on November 4, 1997, exercised their constitutionally guaranteed right to vote in the polling places of Miami…. [P]ublic policy dictates that we not void those constitutionally protected votes…. [A] candidate who wins an election by virtue of obtaining a majority of the votes cast is entitled to take office as a result thereof, and not be forced into a second election…when the said second election only comes about due to absentee ballot fraud, in the first election, that favored one of his or her opponents.46In Re the Matter of the Protest of Election Returns and Absentee Ballots in the November 4, 1997 Election for the City of Miami, Florida, 707 So.2d at 1174. 3. Democratic Mayoral Primary Election, East Chicago, Indiana—May 6, 2003 The absentee-ballot fraud that occurred in the 2003 mayoral primary in East Chicago, Indiana, was so pervasive that the U.S. Supreme Court cited it as an example of proven fraud when it upheld Indiana’s new voter ID law in 2008. In Crawford v. Marion County Election Board, the Supreme Court noted that “Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor—though perpetrated using absentee ballots and not in-person fraud—demonstrate [sic] that not only is the risk of voter fraud real but that it could affect the outcome of a close election.”47 Crawford v. Marion County Election Board, 128 S.Ct. 1610, 1619 (2008). That is certainly what happened in East Chicago, and it is why the Indiana Supreme Court overturned the results of the election.48 Pabey v. Patrick, 816 N.E.2d 1138 (Ind. 2004). George Pabey was challenging the incumbent mayor, Robert Pastrick. Of the 8,227 votes cast on Election Day, Pabey received 199 more votes than the incumbent mayor. But of the 1,950 absentee ballots cast, the mayor had 477 more votes than Pabey, giving the incumbent a victory with a margin of 278 votes.49Pabey, 816 N.E.2d at 1140. However, the trial judge concluded after a week-and-a-half trial, and hearing from 165 witnesses, that the mayor and his cronies had “perverted the absentee voting process and compromised the integrity and results of that election.” The judge found “direct, competent, and convincing evidence that established the pervasive fraud, illegal conduct, and violations of elections law” that proved the “voluminous, widespread and insidious nature of the misconduct.”50 Id. The fraud “compromised the integrity and results of that election.”51Id. at 1144. The “pervasive fraud and illegal conduct” included, but, as the judge noted, was not limited to, the following:
“a predatory pattern” by Pastrick supporters of “inducing voters that were first-time voters or otherwise less informed or lacking in knowledge of the voting process, the infirm, the poor, and those with limited skills in the English language, to engage in absentee voting”;
“providing compensation [bribes] and/or creating the expectation of compensation to induce voters to cast their ballot via the absentee process”;
“assisting” voters in completing their ballots, that is, pressuring people to vote for Pastrick, and directly watching the voters while they “marked and completed their absentee ballots”;
“the use of vacant lots or the former residences of voters on applications for absentee ballots”;
“the possession of unmarked absentee ballots by Pastrick supporters and the delivery of those ballots to absentee voters”;
“the possession of completed and signed ballots” by Pastrick operatives even though they were not authorized by law to have those ballots;
“the routine completion of substantive portions of absentee ballot applications by Pastrick supporters to which applicants simply affixed their signatures,” which were then delivered to Pastrick’s campaign headquarters and photocopied before delivery to election officials; and
votes cast by city employees “who simply did not reside in East Chicago.”52Id. at 1145–1146.
The trial judge said that this primary provided a “textbook” example of the “chicanery that can attend the absentee vote cast by mail…. [I]nstances where the supervision and monitoring of voting by Pastrick supporters and the subsequent possession of ballots by those malefactors are common.” The judge also determined that Pastrick supporters preyed on “the naïve, the neophytes, the infirm and the needy,” subjecting them to “unscrupulous election tactics.”53 Id. at 1146. This case illustrates that, all too often, those targeted by absentee-ballot vote thieves are the most vulnerable in society. In 2012, Anthony DeFiglio, a local Democratic committeeman in Troy, New York, pleaded guilty to falsifying business records in a case involving absentee-ballot fraud in a 2009 primary election. Voters’ signatures were forged on absentee-ballot request forms, submitted without their knowledge, and then their absentee ballots were fraudulently completed and submitted without their knowledge.54 Eric Shawn, “Voter Fraud ‘a Normal Political Tactic’ in Upstate NY City,” Fox News (Jan. 17, 2012), https://www.foxnews.com/politics/voter-fraud-a-normal-political-tactic-in-upstate-ny-city. The voters whose ballots had been stolen lived in low-income housing and, when asked why they had been targeted, DeFiglio told investigators that those voters were “a lot less likely to ask any questions.”55 Id. Another Democratic operative who admitted to forging absentee-ballot applications said that he had “been present when ‘ballots were voted correctly’ by party operatives. Voted correctly is a term used for a forged application or ballot.”56Id. For another case in which minority voters were targeted with an absentee-ballot fraud scheme, see Hans A. von Spakovsky, “Absentee Ballot Fraud: A Stolen Election in Greene Country, Alabama,” Heritage Foundation Legal Memorandum No. 31 (Sept. 5, 2008), https://www.heritage.org/election-integrity/report/absentee-ballot-fraud-stolen-election-greene-county-alabama. The Pabey case also illustrates the difficulty of detecting and investigating election fraud. This fraud occurred right under the noses of local election officials and prosecutors. The only reason it was discovered is because the losing candidate, George Pabey, challenged the outcome, a very expensive and resource-intensive task. The trial judge was “cognizant of the difficulties faced by Pabey in discovering and presenting evidence” of the fraud, stating: Given the voluminous, widespread and insidious nature of the misconduct, petitioner Pabey, his legal counsel, and amateur investigators faced a herculean task of locating and interviewing absentee voters, visiting multi-family dwellings and housing projects, gathering and combing through voluminous election documents, and analyzing, comparing, sifting and assembling the information necessary to present their case…. In short, the time constraints that govern election contests, primarily designed to serve important interests and needs of election officials and the public interest in finality, simply do not work well in those elections where misconduct is of the dimension and multi-faceted variety present here. 57Pabey, 816 N.E.2d at 1146–1147. Moreover, the judge noted another problem in any investigation of absentee-ballot fraud: the “reluctance [of] voters to candidly discuss the circumstance surrounding their absentee vote.” The judge observed that, “It is wholly natural, of course, that voters would be reluctant to expose themselves to potential criminal liability.” Additionally, supporters of the incumbent mayor “were involved in various attempts to influence or prevent witnesses’ testimony…including instructing a witness to ‘feign a lack of knowledge on the witness stand.’”58 Id. at 1147. This even included a local judge who told “prospective witnesses that they did not have to testify unless they had been paid a $20.00 witness fee.”59Id., footnote 3. The Indiana State Supreme Court also discussed the difficulty faced by judges and courts in evaluating “deliberate conduct committed with the express purpose of obscuring the election outcome based on legal votes cast” that is “more invidious and its results difficult to ascertain and quantify.” This includes “schemes that seek to discourage proper and confidential voting or that endeavor to introduce unintended or illegal votes into the outcome [that] will inevitably produce outcome distortions that defy precise quantification.”60 Pabey, 816 N.E.2d at 1150. The court found that a new election was not only justified, it was “compelled” because “a deliberate series of actions occurred making it impossible to determine the candidate who received the highest number of legal votes cast in the election.”61 Id. at 1151. 4. Congressional Election, Ninth District, North Carolina—November 6, 2018 The only challenged congressional race in the 2018 federal election was in the Ninth Congressional District in North Carolina, a district that spans “eight counties along the State’s central southern border.”62 In the Matter of Investigation of Election Irregularities Affecting Counties Within the 9th Congressional District, Before the State Board of Elections, State of North Carolina, Order (March 13, 2019) (hereafter “North Carolina Order”), p. 3, https://www.democracydocket.com/wp-content/uploads/sites/41/2020/03/North-Carolina-Election-Contest-Order_03132019.pdf (accessed July 9, 2020). The incumbent, Representative Robert Pittenger (R), had been defeated in the Republican primary by Mark Harris. Harris faced his Democratic opponent, Dan McCready, in the November 6 general election. After the votes were tallied at the end of Election Day, Harris had apparently defeated McCready by 905 votes, a margin of only 0.3 percent of all the ballots cast in the election.63 Id. at 10. The number of votes received by each candidate was as follows: Harris (139,246); McCready (138,341); and Jeff Scott (5,130). The “number of returned absentee ballots [10,500] far exceeded the margin between Harris and McCready.”64Id. at 3. However, the North Carolina State Board of Elections (“the Board”) refused to certify the results of the election when evidence surfaced of “concerted fraudulent activities related to absentee by-mail ballots,” including illegal vote harvesting by a political consultant and his associates.65 Id. at 4. In North Carolina, only the voter and “a voter’s near relative or the voter’s verifiable legal guardian” is allowed to return a completed absentee ballot to election officials.66N.C.G.S.A. §§ 163A-1298 and 1310. After an intensive investigation that included 142 voter interviews and “30 subject and witness interviews,”67 In the Matter of Investigation of Election Irregularities Affecting Counties Within the 9th Congressional District, Before the State Board of Elections, State of North Carolina, Preview of Evidence, p. 2. as well as public hearings, the Board overturned the results of both the congressional race and two local contests, ordering a new election. The Board concluded that the election “was corrupted by fraud, improprieties, and irregularities so pervasive that its results are tainted as the fruit of an operation manifestly unfair to the voters and corrosive to our system of representative government.”68North Carolina Order at 2. The evidence of a “coordinated, unlawful, and substantially resourced absentee ballot scheme” was “overwhelming.”69Id. at 9. The absentee-ballot scheme was “enabled by a well-funded and highly organized criminal operation” run by Leslie McCrae Dowless, Jr., a well-known political gun for hire in North Carolina and convicted felon (for insurance fraud) who had worked for numerous candidates. In this election, he was being funded by the Harris campaign (as well as other candidates, such as Bladen County Sheriff candidate James McVicker) through a consulting firm called Red Dome Group, but he had previously worked for Democratic candidates, too.70 Id. at 10 and 12. See also Dan Kane and Ely Portillo, ‘The Guru of Bladen County’ Is at the Center of NC’s Election Troubles, The News & Observer (April 23, 2019), https://www.newsobserver.com/news/politics-government/article222806255.html (accessed July 9, 2020). Among the findings of the Board were the following:71 This summary of the evidence is all from the North Carolina Order unless otherwise indicated.
Absentee ballot “requests were fraudulently submitted under forged signatures, including a deceased voter”;
Dowless paid workers he hired “in cash to collect absentee request forms, to collect absentee ballots, and to falsify absentee ballot witness certifications”; their pay depended on how many forms they collected;
In addition to using blank absentee-ballot request forms, Dowless would “pre-fill” the forms using information on voters obtained from prior elections, so that his workers could have the voters simply sign the form—which sometimes included Social Security and driver’s license numbers and birth dates as well;
The absentee-ballot request forms were photocopied before being turned into election officials for later use in other elections or for other purposes;
Because Dowless “maintained photocopies of completed absentee by mail request forms from prior elections—including voters’ signatures and other information used to verify the authenticity of a request—Dowless possessed the capability to submit forged absentee by mail request forms without voters’ knowledge and without detection by elections officials”;
Dowless would withhold the absentee ballot request forms and only submit them “at times strategically advantageous to his ballot operation,” and he would track when “ballots had been mailed by elections officials using publicly available data”;
One of the Dowless staffers even started forging her mother’s name as a witness on absentee-ballot envelopes because “she had witnessed too many” such envelopes under her own name and signature;
During the general elections, “some voters discovered” that absentee-ballot request forms “were submitted on their behalf, but without their knowledge, consent, or signature”;
Dowless and his workers would go to voters’ homes after absentee ballots had been delivered to collect the ballots, often signing as witnesses, even though they had not seen the voter sign the ballots, and pressuring voters by “push[ing] votes for Harris”;
Other absentee ballots were collected uncompleted, and Dowless and his crew “fraudulently voted blank or incomplete” ballots at “Dowless’s home or in his office”;
Dowless took other steps, designed to avoid raising any “red flags” with election officials, that provide a practical playbook for avoiding detection by election officials of large-scale absentee-ballot fraud involving literally hundreds of ballots.72 Some may claim that the fraud did not work since his criminal conduct in this election was discovered, but there is evidence that he had engaged in this same type of absentee-ballot fraud in prior elections, which were not overturned. In fact, North Carolina election officials “sought criminal charges after the 2016 election” against Dowless, “but prosecutors didn’t indict him.” If they had, he would not have been in a position to corrupt the 2018 election, an object lesson in what happens when prosecutors fail to prosecute election fraud. Michael Biesecker, Jonathan Drew, and Gary D. Robertson, “North Carolina Officials Sought to Charge Political Operator,” Associated Press (Dec. 19, 2018), https://apnews.com/58695ada638841e58b8392e3c1d68528 (accessed July 9, 2020). These included:
Delivering small batches of absentee ballots to the post office;
Ensuring that ballots were mailed from post offices geographically close to where the voter whose ballot had been stolen lived;
Dating the false witness signatures with the same date as the voter’s signature;
Using the same color ink for witness signatures as the voter’s signature, even “tracing over existing signatures to ensure conformity”;
Ensuring that stamps were “not placed in such a way as to raise a red flag for local elections administrators,” such as “affixing the stamp upside-down”;
Taking some “collected ballots back to the voter for hand delivery [by the voter] to the local Board of Elections”; and
Limiting the number of times false witness signatures appeared on ballots.73North Carolina Order at 20–21.
Dowless would not testify before the Board after it refused to grant him immunity. The Board found that in addition to his election fraud, he engaged in “witness tampering and intimidation” to “obstruct the Board’s investigation.”74 Id. at 24–25, 37. Even candidate Mark Harris acknowledged to the Board that the testimony he heard before the Board convinced him that “a new election should be called.”75Id. at 41. Due to the “coordinated, unlawful, and well-funded absentee ballot scheme” that “perpetrated fraud and corruption upon the election,” the Board ordered a new election, since it was not possible for the Board to “determine the precise number of ballots” that were affected.76 Id. at 42–44. In addition to the absentee-ballot fraud, the board also found two other “irregularities” in the election: (1) disclosure of early voting results in Bladen and Robeson Counties, and (2) a lack of office security in the board of elections office in Bladen County. Id.. at 10. A special election was held on September 10, 2019, and Dan Bishop (R), who replaced Harris as the Republican nominee after a new election was called, beat Dan McCready, the Democratic candidate who had lost to Mark Harris in the original election.77 Alex Seitz-Wald and Leigh Ann Caldwell, “Republican Dan Bishop wins narrow victory in North Carolina special election,” NBC News (Sept. 10, 2019), https://www.nbcnews.com/politics/2020-election/north-carolina-special-election-mccready-bishop-n1052021 (accessed July 9, 2020). In February 2019, Dowless was indicted by a Wake County grand jury on charges of felony obstruction of justice, conspiracy to obstruct justice, possession of absentee ballots, and perjury in connection to both the 2016 general election and 2018 primary election; and a superseding indictment adding perjury and solicitation of perjury to the charges was returned in July 2019. Six other individuals who worked for Dowless also were charged in the absentee-ballot scheme.78 Carli Brosseau, Josh Shaffer, Dan Kane, and Will Doran, Bladen County Political Operative Faces New Perjury, Obstruction of Justice Charges, The News & Observer (July 30, 2019), www.newsobserver.com/article233308957.html (accessed July 9, 2020). The charges are still pending, although the legal problems faced by Dowless worsened in April 2020 when he was charged by federal prosecutors with Social Security fraud for receiving disability benefits while he was paid $130,000 in political consulting fees.79Will Doran, Political Operative McCrae Dowless Accused of Social Security Fraud in New Indictment, The News & Observer (April 21, 2020), www.newsobserver.com/news/politics-government/article242174111.html (accessed July 9, 2020). Conclusion All of these cases illustrate the vulnerability of absentee or mail-in voting to fraud, forgery, coercion, and voter intimidation. Many of the elements found in these cases are currently being uncovered in an absentee-ballot fraud case unfolding in Paterson, New Jersey, involving the city’s May 12, 2020, mail-in municipal election; four individuals, including a city councilman, have already been charged by the state attorney general.80 Jonathan Dienst, “Paterson City Council Vice President Among 4 Charged with Voting Fraud in May Special Election: NJAG,” NBC4 New York (June 25, 2020), https://www.nbcnewyork.com/news/politics/paterson-city-council-vice-president-among-4-charged-with-voting-fraud-in-may-special-election-nj-ag/2484797/ (accessed July 10, 2020). Uncovering such schemes is resource-intensive and requires extensive and in-depth investigations. The admissions made by defendants and other witnesses also indicate that such unlawful actions have often occurred in prior elections without detection, investigation, or prosecution. As Anthony DeFiglio told state police in Troy, New York, such fraud was “a normal political tactic” used by “both sides of the aisle.” Apparently, forging and stealing absentee ballots was commonplace in Troy.81 DeFiglio pleaded guilty to falsifying business records in an absentee-ballot fraud scheme that involved fraudulent absentee-ballot request forms and the submission of fake ballots with forged voter signatures; voters did not even know that ballots had been submitted in their names. Eric Shawn, “Voter Fraud ‘a Normal Tactic’ in Upstate NY City,” Fox News (Dec. 17, 2012), https://www.foxnews.com/politics/voter-fraud-a-normal-political-tactic-in-upstate-ny-city (accessed July 9, 2020); and Eric Shawn, “They Tried to Steal an Election, N.Y. Voter Fraud Scheme Case Heats Up,” Fox News ( Dec. 20, 2009), https://www.foxnews.com/politics/they-tried-to-steal-an-election-n-y-voter-fraud-case-heats-up (accessed July 9, 2020). DeFiglio’s patronizing statement that low-income voters were targeted because “they are a lot less likely to ask questions” about their ballots82Eric Shawn, “Officials Plead Guilty in New York Voter Fraud Case,” Fox News (Dec. 21, 2011), https://www.foxnews.com/politics/officials-plead-guilty-in-new-york-voter-fraud-case (accessed July 9, 2020). illustrates why, all too often, other perpetrators of absentee-ballot fraud target poor, disabled, and minority voters. Preventing this type of fraud is important to securing the integrity of the election process and ensuring public confidence in election outcomes, which is an essential ingredient of a stable democratic republic. Encouraging even more mail-in voting and relaxing security protocols, such as witness or notarization requirements, is a dangerous policy. As the Miami-Dade grand jury stated in 1997 in the midst of the widespread absentee-ballot fraud that corrupted the election process in the Miami mayor’s race: The right to vote defines the essence of American citizenship. It provides the bedrock upon which our democratic form of government survives. The greatest social struggles in our history, from the emotional impetus for the American Revolution itself, to the struggle for women’s suffrage and the battle for civil rights, have all had at their core the acquisition of the vote for those who were disenfranchised. To a democracy, there can be no greater crime than voter fraud. A single falsely cast vote corrupts the entire electoral process.83Interim Report of the Miami-Dade County Grand Jury, Inquiry Into Absentee Ballot Voting, State Attorney Katherine Fernandez Rundle, Circuit Court of the Eleventh Judicial Circuit of Florida in and for the County of Miami-Dade, Fall Term A.D. 1997 (Feb. 2, 1998), p. 1, http://www.miamisao.com/publications/grand_jury/1990s/gj1997f-interim.pdf (accessed July 9, 2020). Hans A. von Spakovsky is a Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies, of the Institute for Constitutional Government, at The Heritage Foundation.
Hans von SpakovskyElection Law Reform Initiative Manager, Senior Legal Fellow