Do Mail-In Ballots Invite Election Fraud?

The 2020 primary and general elections will see historic highs in the use of mail-in ballots. As a result a partisan debate has erupted over whether the widespread use of mail-in ballots is an invitation to election fraud.  Two studies have examined the frequency of criminal prosecutions due to various types of election fraud, including crimes involving mail-in ballots. These studies, together with a 2012 Miami-Dade Grand Jury report and several recent highly publicized election fraud cases may provide an answer to whether concerns over mail-in ballots are warranted.

The study by the conservative Heritage Foundation involved a national sampling of election fraud prosecutions from 1998 to 2019 and found 206 instances of criminal prosecution for mail-in ballot fraud. A more comprehensive study conducted by News21 , a project of the  Walter Cronkite School of Journalism  at Arizona State University, covered a shorter period from 2000-2012 but involved a more thorough review of court records .  News21 found 491 mail-in ballot fraud prosecutions from 2000-2012, which represented the highest percentage (24%) of all types of election fraud prosecutions nationally during that period.

It is important to keep in mind that both studies focused on cases where fraud was detected and a criminal prosecution was initiated. Neither study counted cases where fraud was detected but no charges were pursued, or where the matter was pursued in a civil case, such as an election contest between candidates. Also significant is that many of the cases examined by both studies involved fraudulent schemes using multiple bogus ballots, such as the now notorious 2018 9th Congressional District race in North Carolina which resulted in a new election because of pervasive mail-in ballot fraud. Even more recent allegations of  multiple ballot fraud  during the May 2020 New Jersey election have resulted in criminal charges against a candidate and several others after the US Postal Inspection Service found hundreds of allegedly bogus mail-in ballots in a mailbox. That election was conducted entirely by mail-in ballots due to the corona virus pandemic.

Perhaps the concern over the widespread use of mail-in ballots is best stated in the 2012 Miami-Dade County Grand Jury Report : Absentee Ballot Voting: Convenience and its Consequences. In this report the Grand Jury addressed in detail the security and logistical problems presented by the widespread use of mail-in ballots. After examining what it described as the lack of integrity in the absentee voting process, the Grand Jury concluded ” …the general sentiment that undetected fraud is occurring is a major problem for this Grand Jury and the citizens of this community. Can the public have confidence in the election results of close races? We are not certain they can”.



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U.S. Senate Will Be Final Judge in Scott v. Nelson Contest

While the close senate race in Florida is causing each campaign to sharpen their litigation knives, it is important to remember that ultimately it is the United States Senate, not the courts, that has the power to decide the issue.

Article I, Section 5 of the United States Constitution states: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members…” This clause has been recognized by the U.S. Supreme Court to mean that while the candidates can file election lawsuits in state and federal courts, congress has the final say and can conduct its own proceedings, call witnesses etc. to determine the outcome of a congressional election.

Read the Court’s decision in Roudebush v. Hartke (1972) for a discussion of Article I, Section 5 , election lawsuits and the power of the Senate to be the final judge in senate elections.

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How Florida Recounts Work

Because there may be several statewide recounts as a result of the 2018 Midterm Election, now is probably a good time to review how the Florida recount process works.

After all the ballots are initially counted, if the vote spread between two candidates  is one half of one percent or less, then a machine (optical scanner) recount of all ballots occurs.  F.S. 102.141(7).  In addition to tallying all ballots, the machine recount also identifies those ballots that are overvotes (voter voted for both candidates) and undervotes (voter voted for neither candidate).  The identification of overvotes and undervotes is by machine, not the naked eye.

If the machine recount shows that the spread between the candidates is one quarter of one percent or less, a manual recount only of the ballots identified by the machine as overvotes and undervotes occurs, unless:  (1) the candidate who is behind requests that the recount not be made, or (2) the total number of overvotes or undervotes is fewer than the number of votes needed to change the outcome of the election. F.S. 102.166.  For example, assume that after the machine recount the spread between the candidates is 10,000 votes, and that spread is one quarter of one percent or less of the votes cast for the office.  Also assume the machine recount identified 5,000 ballots as overvotes or undervotes.  Under this scenario the candidate who is ahead by 10,000 votes would be declared the winner, because a manual recount of the 5,000 overvotes and undervotes would not, as a matter of arithmetic, be sufficient to change the result of the election.

If the total number of overvotes and undervotes would be sufficient to change the result of the election, then a manual recount of only the overvote and undervote ballots would occur to determine if these ballots clearly indicate a vote for just one of the candidates.  The interpretation of the voter’s mark or markings on the overvote/undervote ballot is governed by detailed standards promulgated by the Florida Division of Elections.

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The History of Voting in America

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Federal Court: Florida Election Statute “Illogical, Irrational and Patently Bizarre” Orders State to Allow Correction of Mismatched Signature Ballots

gavelFlorida Northern U.S. District Court Judge Mark Walker has entered another order in a case initiated by the Florida Democratic Party against the State.  In an Order Granting Preliminary Injunction, the Court found that “[i]t is illogical, irrational and patently bizarre for the State of Florida to withhold the opportunity to cure from mismatched signature voters while providing the same opportunity to no signature voters”.  Therefore, the court concluded Florida’s “statutory scheme” regarding the opportunity to cure signature defects in mail-in ballots unconstitutional. See F.S. 101.68. This ruling will likely apply to thousands of mail-in ballots and will require county supervisors to notify mail-in voters whose ballot signatures don’t match registration records that they can correct their signatures by 5pm the day before the election. Judge Walker previously ordered the Governor to extend the voter registration deadline to October 18th, 2016.

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Court Finds Florida’s “Statutory Framework” Unconstitutional-Extends Voter Registration Deadline

Florida Voter Registration and Voting GuideFederal Northern District Court Judge Mark Walker has entered a temporary restraining order which requires Florida officials to accept voter registrations until 5pm October 12th 2016, which is one day beyond the statutory deadline set by F.S. 95.055. In doing so the Court found that “Florida’s statutory framework is unconstitutional” because the statutes permit the Governor in case of emergancies to move election dates but not registration deadlines. The Court set a hearing for 11am Oct. 12th 2016, to determine if the registration deadline should be extended beyond Oct 12th.

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