Attorney General William Barr has been busy following President Trump’s lead in spreading unfounded theories about potential widespread fraud in absentee voting. As an election lawyer for Republican presidential candidates, I know these claims are baseless and harmful to our democracy.
The attorney general’s partisan roleplaying and his false statements about absentee voting seem frighteningly designed to threaten the public perception of the legitimacy of the November election.
On “Fox News Sunday,” Barr said that largescale mail-in voting “opens the floodgates to fraud.” In the same interview, he continued to say he is “worried about undermining the public confidence in the integrity of the elections.” This is a duplicitous statement, since Barr is the one creating and fanning the flames of hysteria that weaken public confidence in elections.
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This is an example of the Trump administration’s double standards. Barr voted absentee in Virginia as recently as last year. President Trump himself voted by mail in the Florida primary earlier this year.
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Similarly, Vice President Mike Pence voted absentee in Indiana, and dozens of other senior Trump administration officials have voted absentee as well. At the same time, their statements discourage average citizens from doing the same thing.
So why are Barr and Trump trying to sow doubts about absentee voting? The answer is that Trump has expressed nakedly partisan reasons for opposing absentee voting.
In his Fox News interview, Barr cited two specific objections two absentee balloting – both fictional.
The first objection was Barr’s claim that “foreign powers” could forge tens of thousands of absentee ballots and send them to election offices as votes for their preferred candidate. In fact, the envelopes containing absentee ballots are required by law to correspond to specific voters and their home addresses.
The outside envelopes often carry unique bar codes verifying the identity of the voter so they would be almost impossible to forge in a personalized way. Veteran election officials of both parties have also emphasized the logistical impossibility of the kind of widespread submission of fraudulent ballots by foreign actors that Barr has described.
All states have in place additional security procedures to ensure a voter’s identity is verified before ballots are opened and counted. In many states, the voter is required to provide proof of personal identification on the external envelope – usually a signature that is compared against voter registration records by trained election officials before the envelope is opened and the ballot counted.
In other states, officials cross-check the ballot with the voter’s state driver’s license number, the last four digits of the voter’s Social Security number, or both. Officials also confirm that the voter has not already voted in that election, either in-person or by mail.
As a result, any mass attempt at ballot forgery would fail to achieve penetration of these individualized security devices.
Attorney General Barr’s unfounded “foreign interference” scare is topped only by his other claim that absentee ballots present a threat to voter’s privacy because their signatures are on the envelope and “so the person who opens the envelope will know how they voted.”
This is a laughable claim, because the universal practice is for the signed outside envelope to contain another blank envelope within it enclosing the actual ballot. Therefore, the person verifying the signature and opening the outside envelope has no idea who the voter supported. The person opening the envelope just takes the blank envelope containing the ballot and puts it in the box with all the other ballots in blank envelopes, to be opened and counted by other officials on Election Day.
Voting by mail is not new. It’s been happening since the Civil War.
Evidence of voter fraud in general is extremely rare, and that is true of absentee balloting too. In both 2016 and 2018, approximately 25 percent of U.S. voters cast mail ballots. Justin Levitt, an election law expert at Loyola Law School, reviewed U.S. elections between 2000-2014 and found just 31 instances of voter fraud over a period when over 1 billion votes were cast.
Having served as general counsel to GOP presidential and U.S. Senate campaigns in the past, I am puzzled by the attorney general’s attempt to question the validity of absentee votes for two reasons.
First, the Republican Party has heavily invested in encouraging older Americans to vote absentee for many years – especially in states like Florida, Arizona and California that have heavy concentrations of seniors. So for years, the Republican Party has benefited from absentee voting and has invested significant resources in these programs.
Second, older Americans in 2016 favored Trump more than the population at large – and it is older voters who are statistically most at risk from COVID-19 and therefore should avoid crowded in-person voting centers (as should many Americans with diabetes, lung issues, immune issues, or other underlying health conditions).
In 2018, 30 percent of Americans age 65 or older cast their ballots by mail, according to the conservative R Street Institute.
Voting by mail is not new. It’s been happening since the Civil War, when huge segments of the Northern voting population were far from home on Election Day.
In 1986, President Ronald Reagan signed into law the Uniformed and Overseas Citizens Absentee Voting Act, which was a major expansion of voting by mail. The law focused on providing ballot access to our military service members, diplomatic corps and other Americans abroad.
Four states – Oregon, Washington, Colorado and Utah – have conducted their elections almost entirely by mail in recent years, with no evidence of fraud.
Other large and swing states like Arizona routinely have more than 50 percent of their votes cast by mail. Meanwhile, a recent study from the Stanford Institute for Economic Policy Research found that vote-by-mail is party-neutral with regard to share of turnout and vote share.
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My fear is that Americans hearing Barr’s comments and reading Trump’s tweets – which have been flagged by Twitter Safety for misleading voters – will get confused about the security of absentee voting.
This is a terrible result in the midst of the COVID-19 pandemic because reducing crowding at in-person voting locations by expanding vote-by-mail is necessary as we try to adhere to social distancing guidelines and make it safe to vote.
States need adequate funding now to ensure that they are ready to allow people to vote absentee. States need to be able to pay for workers, postage and printing to make voting convenient for people.
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The current level of federal funding is a drop in the bucket. More needs to be included in the next coronavirus relief package. Without immediate action, the system will break down in the general election.
There is no time to lose. And false information from the attorney general at this moment looks like an indefensible attempt at election sabotage..