For at least the last six years, Republicans in North Carolina have been on the lookout for instances of voter fraud—the kind of fraud that would justify the state's strict voter ID laws, which some advocates claim have more to do with voter suppression than election integrity. Now, the state's 9th congressional district has become the center of what the New York Times called one of the "highest-profile examples of modern election fraud." But there's a problem for state Republicans: The current scandal has nothing to do with voter fraud.
As the news spreads about the potential fraud, it's important to understand the difference between voter fraud (fraud committed by actual voters) and election fraud (fraud committed by campaigns and political operatives).
An Election Scandal in North Carolina
While, for most Americans, the 2018 mid-term elections ended months ago, one congressional race in North Carolina persisted. Since November, Republican candidate Mark Harris has fended off accusations that his slim, 905-vote lead was the result of fraud. That all changed on Thursday, when Harris—who is dealing with the aftermath of two strokes—conceded to the pressure of the ongoing inquiry. In a hearing with the state's election board, Harris drew audible gasps from the audience when he acquiesced to calls for a new election. State officials promptly announced that a new contest would soon be organized.
If the allegations against Harris' campaign are true, one of Harris' political operatives (a local "election guru" named Leslie McCrae Dowless) covertly assembled a team of election officers to collect and forge absentee ballots. Regulators were tipped off to the potential wrongdoing when absentee ballots from one of the counties in the district swung over 61 percent in favor of Harris (the county is only 19 percent Republican).
Republicans in the state—who recently passed a new voter ID law, after a 2013 foray into voter regulation was struck down in federal court—have been understandably loath to highlight the Harris scandal as an example of voter fraud. But that's not just because Harris is a Republican. The kind of fraud in question is not the kind that voter ID laws would supposedly prevent: It was all done behind the scenes, by election officers, not individual voters.
Not All Fraud Is Created Equal
When it comes to voter fraud, the concern is individual voters impersonating other people, or otherwise voting illegally. For instance, President Donald Trump and other prominent conservatives have floated the assertion—without evidence—that undocumented citizens are voting in large numbers in elections. (Trump also claimed, again without any evidence, that millions of people voted illegally in the 2016 election that he won.)
As Julie Ebenstein, senior staff attorney with the American Civil Liberties Union, explains, there's a difference between fraud committed by voters and fraud committed by a campaign. For her organization, Ebenstein says, this distinction is crucial. The ACLU has long rejected Republicans' arguments—both in North Carolina and the country at large—that voter fraud is a widespread issue. "Intentionally casting a ballot fraudulently: That's the bogeyman that North Carolina and other states have been chasing for years," Ebenstein says.
In 2013, North Carolina's original voter ID law was challenged in court for suppressing voting among African-American voters. Though the state mounted a defense, after three years of litigation, in 2016, the Fourth Circuit Court of Appeals concluded that "the State has failed to identify even a single individual who has ever been charged with committing in-person voter fraud in North Carolina." The court struck down the law, arguing that it targeted African-American voters "with almost surgical precision."
Though Ebenstein says one would be hard-pressed to find instances of voter fraud changing the outcome of an election, election fraud is another story: "What you have in North Carolina now is election fraud, which is a candidate or their operatives violating the law in an attempt to disenfranchise voters and turn the tide of the election," she says.
Ebenstein says that election fraud, in its attempt to disenfranchise voters, actually accomplishes the same undesirable ends as the voter suppression measures the ACLU attempts to fight.
Is Absentee Ballot Tampering a Bigger Risk than Voter Fraud?
Though the current national conversation on election integrity focuses on voter fraud, the sort of ballot tampering that could have taken place in North Carolina may be the greater threat to fair electoral contests.
To sway an election through voter fraud, many individuals would need to coordinate a campaign to impersonate other voters and vote in unison. It would take the sort of criminal planning and organization unlikely to evade detection. And, on an individual level, committing voting fraud is not "a rational choice," as Ebenstein puts it: "Why would one commit a felony offense and risk prison time to vote a single ballot that is not their own, if it's unlikely to change the outcome of an election?"
But the kind of fraud Dowless allegedly committed in North Carolina requires fewer people and less organization to create a much larger effect: A single election officer has access to scores of ballots, both absentee and otherwise.
There are safeguards in place: State election officials in North Carolina, who were monitoring the election, noticed the irregularity in voting patterns and investigated, kicking off the inquiry that's now resulting in a new election. Individual voters in North Carolina also noticed irregularities and reported them, according to Ebenstein.
Ebenstein says that such monitoring and reporting systems are where the resources should be spent to ensure the integrity of elections. "The more energy and resources we're able to put toward that—instead of chasing around a voter fraud bogeyman that doesn't exist—the safer our elections will be," she says.