The Florida Legislature last week created a law enforcement agency —
informally called the election police — to tackle what Gov. Ron DeSantis
and other Republicans have declared an urgent problem: the roughly
0.000677% of voters suspected of committing voter fraud.
In
Georgia, Republicans in the House passed a law on Tuesday handing new
powers to police personnel who investigate allegations of
election-related crimes.
And in Texas, the Republican attorney
general already has created an “election integrity unit” charged solely
with investigating illegal voting.
Voter fraud is exceedingly rare — and often accidental. Still,
ambitious Republicans across the country are making a show of cracking
down on voter crime this election year. Legislators in several states
have moved to reorganize and rebrand law enforcement agencies while
stiffening penalties for voting-related crimes. Republican district
attorneys and state attorneys general are promoting their aggressive
prosecutions, in some cases making felony cases out of situations that
in the past might have been classified as honest mistakes.
It is a
new phase of the Republican campaign to tighten voting laws that
started after former President Donald Trump began making false claims of
fraud following the 2020 election. The effort, which resulted in a wave
of new state laws last year, has now shifted to courthouses, raising
concern among voting rights activists that fear of prosecution could
keep some voters from casting ballots.
“As myths about widespread voter fraud become central to political
campaigns and discourse, we’re seeing more of the high-profile attempts
to make examples of individuals,” said Wendy Weiser, the vice president
for democracy at the Brennan Center.
It’s nearly impossible to
assess whether the talk of getting tough on voter crime is resulting in
an increase in prosecutions. There is no nationwide data on how many
people were charged with voter fraud in 2020 or in previous elections,
and state data is often incomplete. The state numbers that are available
show there were very few examples of potential cases in 2020 and few
prosecutions.
Florida election officials made just 75 referrals to law enforcement
agencies regarding potential fraud during the 2020 election, out of more
than 11 million votes cast, according to data from the Florida
secretary of state’s office. Of those investigations, only four cases
have been prosecuted as voter fraud in the state from the 2020 election.
In
Texas, where Attorney General Ken Paxton announced his new “election
integrity unit” in October to investigate election crimes, The Houston
Chronicle reported that the six-prosecutor unit had spent $2.2 million
and had closed three cases.
And in Wisconsin, where a swath of Republicans, including one
candidate for governor, are seeking to decertify the state’s 2020
presidential election results on the basis of false claims of fraud, a
report released last week by the Wisconsin Election Commission said that
the state had referred to local prosecutors 95 instances of felons’
voting in 2020 when they were not allowed to. From among those cases,
district attorneys have filed charges against 16 people.
“The
underlying level of actual criminality, I don’t think that’s changed at
all,” said Lorraine Minnite, a Rutgers University political science
professor who has collected years of data on election fraud in America.
“In an election of 130 million or 140 million people, it’s close to
zero. The truth is not a priority; what is a priority is the political
use of this issue.”
The political incentives to draw attention to the enforcement of
voting laws are clear. A Monmouth University poll in January found that
62% of Republicans and just 19% of Democrats believed voter fraud was a
major problem.
That may mean the odds of being charged with voter fraud can be linked to the political affiliation of the local prosecutor.
In
Fond du Lac County, Wisconsin, District Attorney Eric Toney was in
office for nine years without prosecuting a voter fraud case. But after
he started his campaign for attorney general in 2021, Toney, a
Republican, received a letter from a Wisconsin man who had acquired
copies of millions of ballots in an attempt to conduct his own review of
the 2020 election. The letter cited five Fond du Lac County voters
whose registrations listed their home addresses at a UPS Store, a
violation of a state law that requires voters to register where they
live.
Toney charged all five with felony voter fraud.
“We get tips
from community members of people breaking the law through the year, and
we take them seriously, especially if it’s an election law violation,”
Toney said in an interview. “Law enforcement takes it seriously. I take
it seriously as a district attorney.”
One of the voters charged,
Jamie Wells, told investigators that the UPS Store was her “home base.”
She said she lived in a mobile home and split time between a nearby
campground and Louisiana. Wells did not respond to phone or email
messages. If convicted, she stands to serve up to three and a half years
in prison — though she would most likely receive a much shorter
sentence.
In La Crosse County, Wisconsin, District Attorney Tim Gruenke, a
Democrat, received a similar referral: 23 people registered to vote with
addresses from a local UPS Store, and 16 of them voted in 2020. But
Gruenke said he had concluded that there was no attempt at fraud.
Instead of felony charges, the local clerk sent the voters a letter
giving them 30 days to change their registrations to an address where
they lived.
“It didn’t seem to me there was any attempt to
defraud,” Gruenke said. “It would be a felony charge, and I thought that
would be too heavy for what amounted to a typo or clerical error.”
Toney
linked his decision to his views about the 2020 election in Wisconsin,
which the Democratic candidate, Joe Biden, won by more than 20,682 votes
out of 3.3 million cast.
While he had never challenged Biden’s win, he said he believed that
“there is no dispute that Wisconsin election laws weren’t followed and
fraud occurred.”
“I support identifying any fraud or election laws
not followed to ensure it never happens again, because elections are
the cornerstone of our democracy,” Toney said.
(Wells, one of the
voters Toney has charged, also said she believed something was amiss in
the 2020 election. “They took it away from Trump,” she told
investigators.)
DeSantis in Florida is perhaps the best-known
politician who is promoting efforts to bolster criminal enforcement of
voting-related laws. The governor, who is up for re-election in
November, made the new police agency a top legislative priority.
The unit, called the Office of Election Crimes and Security, takes on
work already done by the secretary of state’s office, but reports
directly to the governor.
“Florida is going to be on the cutting
edge of this,” said Jessica Anderson, the executive director of Heritage
Action, a conservative advocacy group that supports the bill.
DeSantis
isn’t alone. In Arizona, state Sen. Wendy Rodgers, a Republican who is
trying to overturn the 2020 election, is sponsoring a bill that would
establish an “election bureau” to investigate fraud with sweeping
authority, including the ability to impound election equipment and
records.
In Georgia, Republicans in the House passed a voting bill
on Tuesday that would, among other changes, expand the authority of the
Georgia Bureau of Investigation to identify and investigate election
violations, including the ability to conduct election audits of any
subpoenaed documents
Republican efforts also extend to election administrators.
Republicans in Texas last year increased the penalties on election
workers who are accused of influencing a voter’s decision while offering
assistance, such as translations.
But Florida’s legislation would
be the first in the nation restricting how election officials can
defend themselves in court. The bill bars them from accepting legal
defense provided or funded by a nongovernmental agency.
That
provision has drawn bipartisan criticism. “The principle that a state
would deny legal representation of an election official’s choice when
they’re being pursued for criminal charges is profoundly against the
rule of law,” said Ben Ginsberg, a lawyer for Republican presidential
campaigns and national committees before breaking with the party during
the Trump era.
Ginsburg and Bob Bauer, a prominent Democratic
lawyer, have started the Election Official Legal Defense Network, an
organization of lawyers that gives free legal advice and representation
to election administrators.
Sentences for those convicted of voter
fraud vary widely. A Minnesota man who was on probation for a felony
was ordered to pay a $214 fine this week after pleading guilty to lying
about his voting eligibility on an absentee ballot application. He never
returned the ballot.
But in Memphis, Pamela Moses was sentenced to six years in prison in
January after registering to vote when she had a felony conviction. The
voter fraud conviction was thrown out last month and a new trial ordered
when a judge ruled that the Tennessee Department of Corrections had
improperly withheld evidence that was later uncovered by The Guardian.
In
a statement, the Shelby County district attorney, Amy Weirich, a
Republican who faces re-election this year, blamed Moses for the long
sentence. “I gave her a chance to plead to a misdemeanor with no prison
time,” Weirich said. A spokesman said Weirich hadn’t decided whether to
pursue a new trial.
Moses, a musician and Black Lives Matter activist, said she hadn’t known she was ineligible to vote.
“They
did make an example out of me,” she said in an interview. “They showed
every Black person in Tennessee and whoever else saw this case, you
better not vote, they’re going to put you in jail.”