Most of us tend to think of nonprofits as pulling in the same direction. The missions of certain nature or economic empowerment or childcare nonprofits generally don't conflict with the missions of others. But nonprofits occasionally find themselves on opposite sides of issues, particularly in areas related to civics and politics. The 2020 presidential election has highlighted one of those areas—voting.
More than 300 voting rights lawsuits—many of them nonprofit generated—were active in 44 states before the 2020 election. Scores are still wending their way through the courts. On one side of the issue you have nonprofits like True the Vote, Public Interest Legal Foundation (PILF), and Judicial Watch, which claim that voter fraud is endemic. True the Vote's website states: “Election law experts have long held that the margin of election fraud is 3 to 5%. Nearly 25% of elections are decided by less than 2%.” In a nutshell, True the Vote claims that, at the least, one in 33 voters commit fraud, and the rate could be as high as 1 in 20.
On the other side of the issue you have an array of nonprofits such as the American Civil Liberties Union (ACLU), League of Women Voters, and the NAACP Legal Defense Fund, which believe the rate of voter fraud is statistically insignificant, between 0.0003 and 0.0025% of ballots. That would be one in 40,000 votes at the high end, one in 300,000 at the low end. This is a shocking range of disagreement when compared with claims from the previous nonprofits, and making the issue more complex is that, generally speaking, both sides distrust the other's motives. Are attempts to tighten electoral laws nothing more than voter suppression of the same type that plagued the United States in the past? Are efforts to expand ballot access merely attempts to gain votes at the expense of electoral integrity? In the realm of voter rights lawsuits, sometimes it's difficult to tell up from down.
Lawsuits Across America
The sheer variety of nonprofit-initiated lawsuits has been dizzying. Just before the election, the Minnesota branch of the Council on American-Islamic Relations teamed up with League of Women Voters in a suit charging a company called Atlas Aegis with voter intimidation. Atlas Aegis largely employs ex-military personnel and provides services ranging from consultancy to intelligence work to personal security. The company had advertised for armed security to serve as poll watchers in Minnesota. The lawsuit called this a violation of the Voting Rights Act of 1965. A criminal investigation was soon launched, followed by an injunction, and Atlas Aegis' plan was stopped in its tracks.
In October a nonprofit called the Wisconsin Voters Alliance sued to stop five cities in the state from receiving $6.3 million in grants from the Center for Tech and Civic Life, a nonprofit formed largely with donations from Facebook CEO Mark Zuckerberg and his wife, Priscilla Chan. The suit alleged that the grants were unconstitutional public-private partnerships, and that they amounted to bribery for Democratic cities to increase voter turnout for the election. The Republican appointed judge in the case ruled against Wisconsin Voters Alliance, saying he found no violation of federal election laws.
Meanwhile in more northerly latitudes, the nonprofits Alaska Center Education Fund and Alaska Public Interest Research Group filed a lawsuit in October against the state of Alaska and the Division of Elections. The core issue was absentee ballots, which tend to favor Democrats. The suit demanded that voters be allowed to add information they failed to include with their 2020 absentee ballots, such as signatures on secrecy envelopes. The process, which has now entered the lexicon of political discourse as “curing,” was already legal in 18 states. The case ended up in Alaska's Supreme Court, which upheld a lower court's ruling against changing the rules.
In Michigan earlier this year, PILF filed a lawsuit against the city of Detroit over inaccuracies in its voter rolls. The group discovered that deceased voters were still registered, duplicate registrations existed, and duplicate absentee ballots had been sent out. In one example widely shared on social media, a voter born in 1823 was still registered, however that turned out to be a typographical error in the voter record. The issues were resolved to PILF's satisfaction and the suit was dropped. Election officials pointed out, as a footnote, that duplicate mailings could not have led to voter fraud because signature verification was required on ballot applications and actual ballots.
The Michigan case was a victory for PILF, though no voter fraud was found. The nonprofit has had a notably bad track record with its frequent claims of lawbreaking. For example, earlier this year it released a report stating that more than one million mail-in ballots sent to voters before the 2018 elections were returned as undeliverable. After an investigation by ProPublica, the group was found to have doubled the actual figure. The real number of undeliverable ballots was actually lower than in the 2016 elections. PILF was forced to retract its claim, but not before garnering national press coverage, as well as a tweet from President Trump stating, “Don’t allow RIGGED ELECTIONS!”
Other PILF claims have fallen apart as well. In 2019 it contacted Palm Beach County officials with claims that 100 votes had been cast by dead people in recent elections. The investigative website Reveal News disproved 56 of those, and found no evidence the others on the list had voted. Two PILF reports published in 2016 and 2017 claiming thousands of non-U.S. citizens in Virginia had voted was later largely retracted by the organization. And in 2018, PILF lost a voter fraud lawsuit in Broward County, Florida, with the judge calling the group's claims misleading.
They Said/They Said
With nonprofits on both sides of the voting rights issue producing divergent statistics, many observers might decide the issue is a case of they said/they said, and take whichever side they prefer. But there's more data out there that might help illuminate matters. The U.S. government itself, with all its resources and unlimited budget, launched an investigation into voter fraud in 2017 when President Trump initiated the formation of the Presidential Advisory Commission on Election Integrity. The Commission, led by Vice President Mike Pence and Kansas Secretary of State Kris Kobach, both Republicans, ultimately disbanded mere months after its formation, having met only twice, producing no report. Commission member J. Christian Adams, who is also president of PILF, told Reuters the group's purpose was never to find fraud, but to put the issue front and center preceding the elections.
Other studies have yielded actual data. Arizona State University's News21, New York University's nonprofit Brennan Center for Justice, and the peer-reviewed journal American Politics Research all estimate voter fraud numbers to be very low, with no projected figures surpassing .0025% of all votes cast. Loyola Law School professor Justin Levitt tracks voter impersonation, and has found 45 cases since the year 2000. A Stanford University study from this year found 14 instances of deceased people voting in the state of Washington—0.0003% of 4.5 million total votes. Technology Review published an analysis in November showing how oft-repeated claims that 14% of non-citizens are registered to vote have been driven by bad science and deliberate misrepresentation. The list goes on.
Even looking back decades, when voter fraud would have been easier due to fewer safeguards, research yields similar results. An exhaustive study was conducted by the U.S. government between 2002 and 2005, when the Department of Justice formed a special unit and tasked it with finding instances of federal election fraud. The group examined the 2002 and 2004 elections, and found that 0.00000013% of ballots had been fraudulent.
The influential Heritage Foundation has published statistics on voter fraud that are canonical in conservative circles. In 2018 it published the report A Sampling of Recent Election Fraud Cases from Across the Country, which is posted on whitehouse.gov and paints an alarming picture. The group found 1,071 proven cases of voter fraud, and provides a state-by-state list with details of each offense. However, those 1,071 cases span decades, only ten involve voter impersonation, and only 41 involve non-citizens registering or attempting to vote. In presidential elections from 2000 to 2016, about 932 million votes were cast. The 1,071 cases of fraud Heritage Foundation found represent roughly .0000011%—statistically speaking, zero. The Foundation notes that its list of fraud cases is not exhaustive. But on the other hand, the calculation above isn't exhaustive either. It doesn't include mid-term or state elections, nor elections dating back to the 1980s, which the Heritage study does.
While objective data indicates voter fraud is not a major problem, one interested party took a different tack, and tested the potential for lawbreaking by actually trying to break the law. In 2013 New York City's Department of Investigation (DOI) sent 63 people to polls to attempt voter impersonation. 61 succeeded. The Wall Street Journal later published an article citing the investigation, saying voter fraud had been proven. DOI Commissioner Mark Peters then issued a statement that the Journal had made claims unsupported by facts. “We did not substantiate a single instance of illegal voting,” Peters wrote. “Rather, we found various systemic vulnerabilities, including the failure to purge voters from the rolls who had died. However, our report expressly stated that the evidence collected by the investigation was not a finding of actual voter fraud.”
The New York City experiment seems suggestive that tighter vigilance at polling places is a good idea. But voter ID laws tend to be underpinned by a fantastical assumption that potential problems exist only in Democratic leaning areas. Voters on both sides of the political divide are passionate, and both possess the same opportunities to cheat. Yet many voter ID laws have been nullified by courts for deliberately targeting Democratic—i.e. minority—voters. A 2013 North Carolina law was struck down by the state supreme court, which in its ruling said the law seemed to “target African-Americans with almost surgical precision.” A 2011 law in Texas was struck down when it was found to have been enacted to intentionally discriminate against Black and Hispanic voters. Another law in Wisconsin was curbed in 2016. Such episodes strongly indicate that conservative lawmakers aren't interested in stopping votes that are fraudulent, so much as votes that are Democratic.
If one takes the figures produced by conservative nonprofits at face value they lead to an interesting place. In the 2020 election about 160 million people voted—the highest turnout ever. At True the Vote's fraud rate of 3 to 5%, that would mean that up to 8 million people committed a federal crime when they cast their vote, a number that simply defies reason. It's clear, then, that the battle over voting rights hinges not just on data, but on values. People must ask themselves if they truly believe that 8 million people risked years in prison, personal ruin, and a permanent felony record to submit a fraudulent ballot. For most, this is an easy call. But for others, after years of disinformation and a bitterly waged 2020 presidential campaign, trust in the American voting system, and fellow Americans, has never been lower.