The Sweep: Do We Really Need Election Police?

Campaign Quick Hits

Checking In on the Alabama U.S. Senate Race: Earlier this month, Audrey wrote in this newsletter about the GOP primary race to succeed retiring Republican Sen. Richard Shelby of Alabama. A few days later, she briefly caught up with GOP Sen. Tommy Tuberville, the state’s junior senator, on whether he’d decided to back any of the race’s three frontrunners: Trump-endorsed GOP Rep. Mo Brooks, Shelby’s former chief of staff Katie Britt (who unsurprisingly scored Shelby’s endorsement), or former “Black Hawk Down” pilot Mike Durant.

Tuberville’s response is a good reminder about how memory works in politics. “As I told them, I said, ‘Listen, none of  y’all endorsed me,’ so go after it, so there’ no reason for me to get involved,” Tuberville told The Dispatch on January 12, speaking of his 2020 U.S. Senate primary run against former GOP Sen. Jeff Sessions. 

“I’ve met with all of them. I’ve been to fundraisers with two of them now. And I told them all they can come to my functions and I’m pulling for all three of them,” Tuberville said, adding that he thinks “any combination could make it” to a June runoff if no candidate wins 50 percent of the vote in the May primary. “Let the best man win.”

Surprise! Centrist Democratic Senators Make Bernie Mad: When asked by Punchbowl News’ Christian Hall last week whether he’d support a Democratic challenger against centrist Democratic Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona , Vermont Sen. Bernie Sanders said, “Well, yeah.” 

It’s unusual for any politician (but especially senators) to suggest they’d help to boot their fellow party members from office. But it’s not just that Sanders is particularly ornery or at the other end of the party (though both are true). As the parties themselves have gotten weaker over the last 20 to 30 years (see Jonah for more on this), the ties that bind have understandably weakened as well. There used to be consequences from party leadership if you undermined the parties’ efforts to reelect incumbents—cutting off access to major donors, for example. But as major donor programs have been replaced by online small dollar fundraising, party leaders have lost both the carrot and the stick.

Regardless, Sanders’ comments didn’t seem to rile up Manchin. “I’ve been primaried my entire life,” Manchin told reporters last week when he heard the news. “I’ve never run an election I wasn’t primaried. This is West Virginia, it’s rough and tumble. We’re used to that. So bring it on.”

Outside the Margin of Error: Nice write up from CBS’s Kabir Khanna, “Independents nationwide swung dramatically after 2016, voting for Democratic candidates by double-digit margins in 2018 and 2020. … Even independents who voted for Mr. Biden in 2020 have fallen off dramatically. Their approval ratings have decreased by a whopping 31 points.” It’s a cliché, but this isn’t just bad news for Biden in some amorphous pre-2024 sense, this is going to translate directly for Democrats on the ballot in 2022—and especially House candidates whose fortunes rise and fall more closely with presidential approval numbers. I still think a lot of these disappointed Biden voters will “come home” as we get into the summer, but each month that passes before the White House can figure out how to stanch the bleeding makes that harder.

Exit Polls: Neat slide deck on exit polls that our friends at AEI pulled together with a good explanation on how the sausage is made as well. There’s nothing earth shattering; it’s more about seeing how slowly these changes happen in the American electorate. Scroll to page 11 for the educational breakdown of white voters by gender. It’s a doozy!

Team America: Election Police

Following on the heels of Florida Gov. Ron DeSantis, Georgia Republican gubernatorial candidate David Perdue announced that he would create an Election Law Enforcement Division that would be “charged with enforcing election laws, investigating election fraud and arresting people who commit offenses.” 

For those picturing armed and uniformed officers standing outside your precinct, I don’t think that’s the point here. Rather, Republicans have been stymied again and again when asked to produce proof of substantial or systemic voter fraud to justify more stringent election security laws. Their pushback is “sure, we don’t have lots of examples of voter fraud prosecutions but that’s only because the police and prosecutors don’t ever investigate it.” And it’s worth noting that by and large, they’re not wrong on that score. So then it makes sense that their solution is a dedicated police force to prove how much voter fraud there actually is.  

So the question is: Based on my experience on the legal teams of all these campaigns, do I think the idea of an election fraud law enforcement unit is nuts and what do I think they would find if they existed?  

First, because every election law is a tradeoff between the ease of voting and making sure your vote counts (the security of the election), let’s do a quick refresher on why it’s hard to steal a statewide election:

1. Adding votes: 9 out of 10 registered voters vote. This means that you can’t just dump 10,000 ballots into a precinct. Fraudsters would need to spread out their ballots over 150 to 200 precincts, and that would take a lot of friends. Ask any federal prosecutor and they’ll tell you how poorly conspiracies tend to work when they require dozens of people to get on board and stay quiet—especially when there’s no financial windfall. 

   But a fraudster could boost the denominator by adding fake registrations, right? Not at scale. In Pennsylvania, for example, a potential voter has to provide an in-state driver’s license, a Social Security number, or an address. But our fraudster needs to do this at least 10,000 times, then he has to collect the 10,000 ballots that have gone out to—let’s be generous—1,000 different addresses, and return all them without raising eyebrows or including too many people in on the con.

   And then there’s the dead voters. There’s no question that zealous people may sometimes fill out a ballot that was sent to their dead grandmother or spouse. The problem is that without a coordinated plan or any partisan advantage in death that these votes will largely just cancel each other out. But the truth is that most of the “dead people voting” are actually clerical errors–the person inputting the voter registration hits 1902 instead of 1992—or the person checking in voters at the precinct hits John Smith at 12 Smith Lane, the dead father, instead of the very much living son. (This one is easy to double check, because the younger John Smith will not have voted according to the voter rolls.)

2. Changing votes: There’s a guy in New Jersey who claims he was a pro at this. He would collect a bunch of absentee ballots, steam open the security envelope that has the signature on it, change the vote, reseal, and drop off. Right now, only 14 states allow a random person to collect a bunch of absentee ballots (I elaborate on a ballot harvesting case in North Carolina below) but even so, it’s hard to see doing this at scale. Our professional ballot changer said it took him only 5 minutes per ballot—or 12 ballots an hour. Doing the math—and assuming you could get your hands on enough absentee ballots in the first place—it would take four people eight hours a day for the full week before the election to fix 2,000 ballots. Not enough. (And for what it may be worth, this reporter tried to replicate the guy’s process and wasn’t able to steam open a single envelope in 12 minutes of trying without tearing it, but maybe the reporter was just bad at committing felonies.)

3. Hacking: I won’t pretend to run through every scenario here but bear in mind the FBI is pretty good at detecting cyberattacks and intrusions. But, okay, our fraudster uploads a virus that switches every 20th Trump vote to a Biden vote. Who would know? First, you would have to infect individual voting machines–not, for example, the website for the secretary of state or something because the votes are all recorded multiple times a day per precinct and per machine. Second, you’d obviously have to infect a lot of voting machines, which means breaking into the storage facility where they are kept and before they are sent to the precincts. Third, you’d have to make sure that you are switching few enough votes per machine that the error isn’t caught when the machines run “test ballots” each morning to ensure they are counting properly. Fourth, this would work onlyin one of the 12 states that don’t also have paper ballots that would contradict the machine counts. That also means you’d expect, for example, Trump to win close states with paper backups (Michigan, Wisconsin, Arizona) and lose close states without paper backups (Pennsylvania and Georgia). But instead, he lost all five. 

Now, just because it’s hard-to-impossible to steal a statewide election, doesn’t mean someone couldn’t steal a down-ballot race using variations on the above methods and those races are obviously important, too. Even so, the key is prioritization. 

In theory, we could tax/confiscate a lot more money from citizens and create a police force so large that there would be next to no crime. But we don’t. Why? We have decided as a society that we’re okay with a certain level of tradeoff—fewer police, more crime, but at a level we can tolerate. That means we never have enough police or prosecutors to investigate or prosecute all the crimes we know have happened. We’ve literally designed the system to be underinclusive.

And so governing is the act of deciding where to prioritize those law enforcement dollars/hours. Here’s just a tiiiiiny glimpse as to why I think there might be some higher priorities right now:

The number of carjackings quadrupled in New York City over the last four years … Carjackings in Philadelphia nearly quadrupled between 2015 and 2021 … In New Orleans, there were 281 carjackings last year, up from 105 in 2018 … 

More than 1,800 carjackings were reported in Chicago last year, the most of any large city, according to data released by police departments to CNN. Chicago’s 2021 tally was the most on record over the last 20 years … Last year saw more than five times as many carjackings as in 2014.

Chicago’s clearance rate for carjackings is low, and has further declined during the pandemic. According to the University of Chicago’s Crime Lab, only 11% of carjacking offenses resulted in an arrest in 2020, down from 20% in 2019. Just 4.5% of offenses resulted in charges approved by the State Attorney’s Office. 

You see my point? If you’ve got extra police laying around, then the dramatic rise in violent crime in pretty much every major U.S. city (in Georgia, homicides jumped 55 percent last year) coupled with the low clearance rate is a more pressing problem for the vast majority of people. 

But let’s assume they still decide to create this election fraud unit, what do I think they would find? They’d find what every hammer finds: a nail. But I don’t doubt there are quite a few nails out there.

I’ve mentioned before the most consequential election fraud prosecution of my lifetime. It happened in the 2018 cycle—the only time a congressional election has been overturned because of election fraud in U.S. history. For those who want the true crime version, Politico has a great version here. 

Here’s the topline allegations: In North Carolina, ballot harvesting is illegal. Political operatives can distribute and collect absentee ballot applications, but they can’t handle the ballots themselves. Leslie McCrae Dowless is accused of recruiting an army of opioid addicts in Bladen County to do both to help Republican Mark Harris win a congressional seat in 2018. Dowless was charged by the state and the feds for everything from illegal ballot handling to obstruction to perjury to Social Security fraud. 

(Incredible epilogue: Mark Harris’ son, who testified against his father, is now running for statehouse in North Carolina.) 

But here’s where it gets really interesting. The North Carolina Board of Elections flagged this guy to state and federal law enforcement after plenty of people noticed fishy absentee numbers coming out of Bladen County after the 2016 election. They provided a 300-page report that detailed allegations against Dowless and his Democratic counterparts who were accused of doing the same thing for the other side. And by all accounts, they had Dowless dead to rights, including admissions from two campaign workers who said they had been paid to handle ballots illegally and complaints from three voters whose ballots were collected by Dowless’ people.

But nothing happened.  

If you’ve worked in campaigns long enough, you’ve heard rumors about plenty of Dowlessees out there. Heck, if you read Robert Caro’s Means of Ascent, it’s not a new phenomenon. It appears the “means” Johnson used involved at least 202 fraudulent ballots in Jim Wells County. 

So what does this mean for our election police? It means that they are more likely to find the Dowless types earlier in the process than we currently do. Election fraud is bad and catching people who do it is good. But just remember that this huge fraud take down involved something like 400 ballots (and it may turn out to have been closer to 200). And even that required a whole lot of co-conspirators who were happy to flip on their boss, including plenty of voters who had already complained to the board of elections, and the number of ballots involved wouldn’t have been enough to change the outcome of the 2018 election in the 9th District.

And that means, as is always the case in governing, it’s all a matter of priorities.