By Richard L. Hasen / The Washington Post
On Wednesday morning, President Trump threatened to withhold aid from Michigan and Nevada because of purportedly illegal activity related to absentee ballots. In reality, the states are doing nothing illegal; they are trying to ensure voters can exercise their right to vote without jeopardizing their health during a pandemic.
Even putting aside the likely unconstitutionality of the president conditioning aid to states upon acceding to his political demands, Trump’s unsupported claims are exceedingly troubling because they seek to cast doubt on the legitimacy and fairness of the upcoming elections without reason. Trump may not realize it, but they are also politically counterproductive for him: Rural Republican voters, even in blue states, may be the ones most hurt in November by attacks on mail-in balloting.
Let’s start with the facts. On Michigan, Trump wrote: “Breaking: Michigan sends absentee ballots to 7.7 million people ahead of Primaries and the General Election. This was done illegally and without authorization by a rogue Secretary of State. I will ask to hold up funding to Michigan if they want to go down this Voter Fraud path!.” On Nevada, he wrote: “State of Nevada ‘thinks’ that they can send out illegal vote by mail ballots, creating a great Voter Fraud scenario for the State and the U.S. They can’t! If they do, ‘I think’ I can hold up funds to the State. Sorry, but you must not cheat in elections.”
But Michigan is not sending absentee ballots to all 7.7 million registered voters in the state, as Trump’s claim — later retracted — suggests. Instead, as Michigan Secretary of State Jocelyn Benson explained, officials are sending absentee ballot applications to voters. These forms have to be filled out and sent back to election officials, who verify that these voters are, indeed, eligible to obtain ballots. Republican election officials in states such as Iowa and Nebraska have done the same thing. Political parties send such applications to voters all the time. Trump has offered no evidence that sending absentee ballot applications leads to the fraudulent casting of ballots.
In Nevada, the state has shifted to all-mail balloting for a primary next month in light of the pandemic. As the state explained to a federal court when this decision was challenged by the right-wing group, True the Vote, the change aimed “to maintain a high level of access to the ballot, while protecting the safety of voters and poll workers, who belong to groups who are at high risks for severe illness from COVID-19.” In Paher v. Cegavske, challengers claimed that Nevada’s decision to conduct an all-mail primary in response to the pandemic “disenfranchised” them because their votes would be diluted by fraudulent votes cast by mail. The court concluded that plaintiffs’ claim of voter fraud was “without any factual basis.”
Absentee ballot fraud is very rare; there were 491 prosecutions related to absentee ballots in all elections nationwide between 2000 and 2012, out of literally billions of ballots cast. When someone tries an absentee ballot scheme — as appears to be happening now in Paterson, New Jersey — it is hard to hide, and the folks tend to get caught.
So why is Trump tweeting out baseless fraud claims and making threats he probably cannot follow up on to withhold aid from states that help voters exercise their constitutional rights? I cannot get into the president’s head to know whether he actually believes there is something illegal or fraudulent going on in these states. (He voted by mail in Florida’s primary this year and in New York in 2018, so he must not think all absentee ballots are phony.) What I do know is these claims serve to undermine his supporters’ confidence in the fairness and integrity of the election process.
By claiming Democrats cheat, he is laying the groundwork for instability and a potential political crisis in November should he lose. Democracy depends upon the losers of an election accepting the election results as legitimate and agreeing to regroup to fight to regain political power in the next election. If large numbers of voters believe the winning side cheated in elections, we could have unrest and resistance to lawful government orders.
I am particularly worried about states such as Michigan, which for the first time will see a tsunami of absentee ballots in November. These states do not have long histories of counting absentee ballots, which takes much more time than counting in-person ballots (because absentee ballot envelopes need to be checked and processed before ballots can be counted). It will be the big Democratic cities such as Detroit that will take the longest for ballots to be counted. It is entirely conceivable Trump could be ahead in the ballot count on election night based on votes cast in person, only to see his lead disappear and Democrat Joe Biden declared the state’s winner days later. What if Trump claims victory on election night and claims without evidence that the later-counted ballots are infected with massive fraud? As I explain in my book “Election Meltdown,” he made just such an unsubstantiated claim about a disputed U.S. Senate race in Florida in 2018. He could use the period during delayed counting to rile up his supporters.
The president’s dangerous tweets stand to undermine our democracy. In a recent report, a committee of election experts that I chaired issued 14 recommendations to ensure that we have a fair election during the pandemic and that the vast majority of voters will accept the results of the election as legitimate. Among the key recommendations are that states should reduce delays in the counting of absentee ballots and that the media should help inform the public that because of increased absentee voting, “delays in election reporting are to be expected, not evidence of fraud, and that the 2020 presidential election may be ‘too early to call’ until days after Election Day.”
But, ironically, Trump’s claims about voter fraud also increase the chances that he is going to lose in November. We know rural Republican voters had a harder time voting by mail in Wisconsin when it held its recent primary under pandemic conditions. As political scientist Michael McDonald pointed out, rural counties are going to have the hardest time dealing with an absentee ballot surge because these areas are more likely to lack adequate resources and training. Why would Trump voters jump through extra hoops to vote by mail if they believe, as the president is telling them, that the system is rife with fraud? The voters Trump is hurting is his own.
Trump is throwing fuel on the fire and undermining the November election. It is up to the rest of us to keep dousing his flames with the truth.
Richard L. Hasen is the chancellor’s professor of law and political science at the University of California at Irvine and the author of “Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy.”