Over the Labor Day weekend President Trump again urged his supporters to attempt to vote twice in the November election. He said the following about mail-in ballots during a “tele-rally” for North Carolina voters on Saturday:
“So if it hasn’t been counted, if it doesn’t show up, go and vote, and then, if your mail-in ballot arrives after you vote, which it shouldn’t but possibly it could perhaps, that ballot will not be used or counted in that your vote has already been cast and tabulated, so this way you’re guaranteed to have your vote count.”
Trump essentially told North Carolina voters to cast two votes, and put the onus on election officials to detect and prevent a fraudulent act.
Election officials were quick to point out that attempting to vote twice in an election is both a federal crime and a felony in most states. North Carolina state law says it is a Class I felony “for any person with intent to commit a fraud to register or vote at more than one precinct or more than one time, or to induce another to do so, in the same primary or election . . .” That italicized bit raises the question of whether Trump’s statements were themselves felonious.
Trump’s “vote twice” directive also betrays a lack of understanding of the way election systems work.
States are required under the National Voter Registration Act of 1993 and the 2002 Help America Vote Act (HAVA) to maintain a list of registered voters in a computer database. Many counties now use e-poll books containing voter data that can be shared and synchronized electronically between polling places. Some precincts may still use the old paper list, and follow strict protocols to keep every copy of the list used by precincts in sync, explains MIT political science professor and elections expert Charles Stewart III. Once a person casts a ballot—whether via vote-by-mail, early voting, or election day in-person voting—that fact is reflected next to their name on the voter list.
“These systems are developed in the states to work together to be synchronized precisely to stop this double voting,” Stewart said.
Regardless of whether they’re electronic or not, the voter list reflects whether a voter has requested a mail-in ballot, whether an official like the county clerk has sent one out, whether the voter has returned the ballot, and if it’s been approved, processed, or tabulated. A paper voter list might use a series of codes to indicate these statuses. E-poll books may use a question mark or other alert symbol next to a voter’s name to signify the existence of an absentee ballot. More information on the status of the voter and the ballot is included in a notes field.
If a voter who has requested a mail-in ballot shows up at a polling place to vote, poll workers may ask them to surrender, or “spoil,” the mail-in ballot. If they don’t have the mail-in ballot, they may in some cases be able to sign an affidavit stating that the ballot was lost or destroyed. Alternatively, the voter may be allowed to fill out a provisional ballot, Stewart explains.
“They [election officials] hold onto that provisional ballot until the deadline is passed when your mail ballot could show up,” Stewart says. Then they default to the in-person ballot. If the mail-in ballot does show up before the deadline, then the election officials will make a decision on whether to use the in-person or mail-in ballot. The in-person ballot is usually the choice.
The point is that the system and procedures, which states have developed over the course of many elections, are equipped to detect all kinds of double-voting scenarios whether they’re intentional or accidental.
“It could be people who maybe want to hop between early voting sites, or might want to vote early in person and then vote on election day, or hop between vote centers on election day,” Stewart says.
Not a common problem, not yet
As such, convictions of people who cast two ballots in the same state (as Trump suggested North Carolinians do) are relatively rare. The White House cites a study by the Heritage Foundation that found 206 cases dating back to the 1980s where people tried to vote twice in an election. Many of those cases involve people who were registered in, then voted in, two different states.
In one well-known example, an Arizona court convicted a woman named Carol Hannah for voting in both Arizona and Colorado during the 2010 midterm election. But the ruling was reversed after it was shown that Hannah voted on different races in Colorado than she did in Arizona, and that Arizona state law didn’t expressly prohibit that. The Heritage Foundation’s study, however, reports only Hannah’s original conviction but fails to mention that the conviction was overturned on appeal.
Much more recently, Georgia’s Republican secretary of state, Brad Raffensperger, on Tuesday charged, without providing proof, that 1,000 people cast absentee ballots and then also voted in person during the state’s June primary election. He says his office knows of only one voter who did so with fraudulent intent, and that the other 999 will be investigated by the state attorney general’s office.
It’s unlikely that very many of them really intended to cast two votes.
Double-voting often occurs by error or accident. It can, for instance, stem from a casual attitude about absentee ballots among voters, says Bob Brandon, president of the bipartisan voting rights org Fair Elections Center.
“That’s the first thing people do–they request them from time to time and then they either forget or they decide that they want to go out and vote in person,” Brandon says. “Sometimes they bring them with them, sometimes they don’t; they don’t think it matters . . .”
In other cases, voters worry that they sent in their absentee ballot too late to be counted, so they go to the polls and vote that way, too, former Arizona election official Tammy Patrick told NPR.
It would be nice if such voters could find out if their ballot was received and approved without having to leave home and risk exposure to coronavirus. But whether they can do that is a crapshoot, depending on where they live. Ten states have no site for ballot tracking, 31 states offer some ballot tracking but have no law requiring it, while nine states have such laws, according to Voting Rights Lab. In some cases, it’s the county that provides the ballot tracking. In many places the best thing to do is call the local election official on the phone to find out.
Fears of ballots arriving late are justified. Lateness is the number one reason mail-in ballots get rejected. Because of the coronavirus, many states have changed their election laws to allow greater time for absentee ballots to be distributed and returned. Others have found ways to offer more flexibility without actually changing the law. But 31 states (including most swing states) still require mail-in ballots be received—not just postmarked—by election day, while only 14 require that the ballot be postmarked by election day. If postmarked is good enough for tax returns, why not ballots?
Election experts, voter advocates, pundits, and politicians–even Donald Trump–urge voters to send in their mail-in ballot as soon as possible to make sure it gets counted. The irony of that isn’t lost on VoteAmerica founder and vote-by-mail tech advocate Debra Cleaver:
“This is only necessary because the president has waged a months-long campaign against the USPS–appointing an inexperienced Postmaster [Louis DeJoy] with the deliberate goal of stripping funding and breaking down the processes that make the USPS the most efficient government program in America,” Cleaver says. (Yes, the post office is the most popular agency of the U.S. government.)
Some states set up mail-in voters for failure by allowing them to request absentee ballots so close to election day that election officials have no chance to get them out fast enough. A hamstrung U.S. Postal Service only compounds the problem. In fact the post office sent letters to all 50 states in July asking them to allow at least a 15-day window before election day for voters to request and return absentee ballots via the USPS. It said 45 of 50 states risk disenfranchising voters because of unworkable timelines.
Human error, not mal-intent
Apparent double votes are also often the result of errors by election officials, MIT’s Stewart told me.
“What we normally see in these circumstances is that once you start investigating, the great majority of these cases go away,” MIT’s Stewart said. “And they go away because of the clerical errors that are made in the polling place . . .”
Clerical errors can happen when election workers, including volunteers, are harried because of understaffing. Milwaukee closed all but five of its 180 polling places during the 2020 Democratic primary because they had no people to work at them. The workers feared catching coronavirus from any of the thousands of people with whom they come in contact. Many poll workers are older people: 60% of all the poll workers who worked the 2016 election were over 60 years old.
Staffing shortages may extend to full-time county or state election workers. “Many states–such as Pennsylvania and Wisconsin–are super under-equipped to count the ballots in the first place,” says VoteAmerica’s Cleaver. “They only have until December 8th to certify the election results and don’t physically have enough bodies in the room.”
Cleaver says that while many states have changed their election laws to allow mail-in ballot counting to start well before election day, many, including Pennsylvania and Wisconsin, have refused to do so.
On one level Trump’s “vote twice” advice doesn’t even make sense. Why should a voter even bother requesting and sending back a mail-in ballot if they’re going to go to the polling place anyway? (Trump doesn’t question the viability of in-person voting.)
But the really dangerous part of Trump’s campaign to promote fear, uncertainty, and doubt about mail-in voting is that it actually endangers lives, needlessly.
“It’s the confusion that’s being sowed to people that feel they really need to vote by mail because of their health concerns,” MIT’s Stewart says, “and not being sure now because of all the rhetoric that somehow they’re ballot’s not going to count, or that somebody’s gonna take it and change it or something, and that’s just false.”
The whole point, after all, of promoting and enabling voting by mail this year is to allow people to stay away from crowded polling places where coronavirus might spread. In the case of Trump and the Republicans, it’s an extra cruel caprice because disproportionately high numbers of older, and often health-compromised, people constitute their base.
Trump is essentially asking them to risk their health to vote for him.