After the 2016 election, President Trump claimed that millions of votes had been illegally cast. The commission he established to investigate this came up empty-handed.
Why not just look? What’s the harm?
This is the best case that President Donald Trump and his allies have for investigating claims of voter fraud in the 2020 election. Unfortunately for them, it’s still a very weak case. Republicans have for years been pushing claims of massive voter fraud that swings elections, and for just as long, they’ve failed to turn up evidence of it.
On Tuesday, The New York Times published an article in which reporters contacted top election officials in all 50 states to ask if they had any evidence of fraud. Not a single state reported back an issue (though in four cases, the paper had to rely on public statements or other officials). Only one state had no response: Texas, where Lieutenant Governor Dan Patrick offered a $1 million reward for evidence of fraud. You don’t offer huge cash prizes if you already have evidence. Rewards like this also create a strong incentive to gin up false claims. Already, a Pennsylvania postal worker who alleged fraud has reportedly recanted; donors have collected nearly $140,000 for him.
But the best reason for skepticism comes from Trump himself. He’s claimed fraud before, and despite a major effort to find it, turned up nothing. After his 2016 victory, the new president appointed a commission to study the matter. The commission collapsed less than a year later, without producing any evidence of fraud, or any findings at all.
Despite having won the 2016 election, Trump insisted that he had been denied a victory in the popular vote by 3 million to 5 million unauthorized-immigrant voters. He did not provide any evidence for the claim, because there is none. As voting experts have noted for as long as the fraud claims have circulated, it is impossible to execute fraud on this scale. Every year, there are individual cases of voters voting illegally, but to stuff the ballot boxes this way would require a massive and highly conspicuous effort, as Philip Bump showed in a thought experiment.
Nonetheless, Trump announced in May 2017 that he’d convene a commission to study voter fraud. (This was the same week that the president fired FBI Director James Comey, welcomed Russia’s foreign minister and its ambassador, disclosed sensitive intelligence to them, and threatened Comey with the release of fictitious tapes. Also, Robert Mueller was appointed as special counsel.)
The titular head of the commission was Vice President Mike Pence, a sign of the importance it held for Trump, but its effective leader was Kris Kobach, a Republican who was then the Kansas secretary of state. Kobach has been one of the most relentless voices claiming voter fraud, and was considered for positions in the Trump administration but not chosen. Several of the other members of the commission were similarly zealous boosters of the voter-fraud claim; there were a couple of token Democrats, too.
Almost immediately, the commission ran into trouble. With no credible evidence of fraud in hand to start proving the conclusion that both Trump and Kobach had clearly already reached, it had to turn something up, fast. In June, Kobach sent a letter to states asking for all publicly available voter data, including names, addresses, voting history, party affiliation, felony convictions, and the last four digits of Social Security numbers. (That is the information on which Kobach’s Interstate Voter Registration Crosscheck Program, a national database, runs.)
State officials and security experts, including many Republicans, reacted with horror. They said Kobach had offered no secure way to send the information, and in any case, there was no reason to believe that it would prove fraud. Besides, it would cost taxpayer money, could endanger privacy, and in some cases violated state law. “My reply would be: They can go jump in the Gulf of Mexico and Mississippi is a great State to launch from,” Mississippi Secretary of State Delbert Hosemann, a Republican, said of the commission and its requests. Election officials also complained that the commission was intimidating voters into canceling their own valid registrations.
These responses reflected an uncomfortable reality for Kobach: Though many Republican election officials support stricter voting laws, including such things as photo-identification requirements, they also take seriously that their job is to run elections smoothly and prevent fraud, and weren’t pleased about the implication that they were failing.
Without most of the data it had requested, and without any other evidence of fraud, the commission was stalled. In September, it held a meeting in New Hampshire to investigate Trump’s claim of fraud there, but Bill Gardner, New Hampshire’s secretary of state and a commission member, rebutted the claim. By October, two of the group’s Democrats were complaining that they had been shut out of deliberations and meetings. One of them, Maine Secretary of State Matthew Dunlap, sued to demand access to commission material, and won.
In January, the group was finally put out of its misery, without releasing any findings. The Trump administration said it would not hand materials over to Dunlap, because the commission no longer existed, but a judge disagreed, and in August 2018, Dunlap released the documents he’d obtained. They showed that in its months of work, the commission had uncovered no evidence of fraud.
(The commission’s demise was the start of a rough 2018 for Kobach. In June, a federal judge struck down as unconstitutional a law Kobach had championed that required voters to prove U.S. citizenship. She also rebuked him for his handling of the case, and required him to take a remedial class in the rules of evidence. In November, Kobach lost a gubernatorial election in deep-red Kansas to a Democrat. He also lost the 2020 GOP primary for U.S. Senate.)
Voter fraud does exist—just usually on the individual-voter scale. There have been cases of larger, organized fraud, including in Chicago in 1982 and Brooklyn in 1984, but the numbers involved were not large enough to swing a presidential election, and the laws in these jurisdictions have since been tightened. The most famous purported case of systematic fraud, of Chicago giving the 1960 presidential election to John F. Kennedy, is unproven at best.
Every time Trump claims fraud in the 2020 election, the important thing to remember is that he’s already looked for evidence of such fraud and come up empty-handed. In the 2016 case, furthermore, he had a specific claim, if not a very persuasive one; this time, he hasn’t offered any numbers, just bluster. Voter-fraud campaigners sometimes contend that the absence of evidence is evidence of absence. That may be a wise way to philosophize, but it’s an impracticable way to assess election results.
In refusing to recognize President-elect Joe Biden’s victory in remarks on Monday, Senate Majority Leader Mitch McConnell said that Trump “is 100 percent within his rights to look into allegations of irregularities and weigh his legal options.” That’s true as far as it goes, but the question is not whether he has a right to do so; it’s whether doing so is wise and whether he’s likely to prevail. The answer to both questions is no.
Nevertheless, Republicans haven’t given up. Pennsylvania Lieutenant Governor John Fetterman, a Democrat, replied on Tuesday to Patrick’s $1 million reward, offering a documented case of a Keystone State man who requested an absentee ballot for his deceased mother, so he could cast an extra ballot. Fetterman asked for his reward in gift cards to Sheetz, the beloved regional convenience-store chain.
The Pennsylvania man charged in the fraud case is a registered Republican. As of this writing, Patrick hasn’t delivered the gift cards to his counterpart. The search continues.