- Thanks to Mack Weldon for
keeping Legal Eagle in the air and helping me look fly. President Trump caused quite a stir when he tweeted that the
election should be delayed because Democrats were about
to commit mass voter fraud by encouraging people to vote by mail. Now I've already covered the
possibility of election delays in my video, "Can the
President Cancel the Election?" And I and most people
came to the conclusion that because the election is
enshrined in the constitution, that President Trump probably cannot delay
or cancel the election. But President Trump's recent
comments about voting by mail, raise a different issue entirely not canceling the election
or postponing the election, but voter suppression. And according to the President, voting by absentee ballot is safe while voting by mail is unsafe. Apparently unaware that those
are basically the same thing. Then the Trump Campaign recently
sued the state of Nevada for its plans to send every
registered voter a ballot. Now, why are states suddenly interested in increasing opportunities
to vote by mail? And are there legal insecurity differences in how mailed ballots and absentee ballots are handled and counted? And does the president have the power to change the way that
states run their elections? Well, today we're going
to learn about the laws that regulate elections, the prevalence of voter
fraud or lack thereof, and the safety of mail-in
votes and absentee ballots. (upbeat music) Hey, Legal Eagles, it's
time to think like a lawyer because we have an election coming up and the presence of the COVID-19 pandemic has changed absolutely everything. And I never thought I'd say this, but it appears that the
president is trying to get people not to vote in the November election. - I've said it before,
and I'll say it again. Democracy simply doesn't work. - So the first question we need to ask is who regulates voting in general? Well, there's actually a fair amount of federalism in voting. The U.S. Constitution Elections Clause, Article one, Section four, empowers the states to
determine the quote, "Time, place and manner" of congressional elections
subject to Congress's authority to make or alter state regulations. Dividing the power between the
states and federal government is a cornerstone of American federalism. state and local governments
therefore have the authority to enact laws for such elections, including rules concerning public notices, voter registration, voter protection, fraud protection, vote counting and determination of election results. However, Congress may pass federal laws, regulating congressional elections, which then automatically preempt any contrary state statutes. And Congress can also
enact its own regulations, if the states didn't
address something important, but remember both Congress
and state governments are constrained by the other protections guaranteed by the constitution. For example, if a state
imposes barriers to voting that violate the 14th Amendment, the laws can be challenged
as unconstitutional. During the Jim Crow era, states enacted laws designed
to stop black voters from voting such as literacy tests, property ownership requirements, and mandatory of fees known as poll taxes. But for the most part, the laws that regulate how a person votes such as what time the
polls open and close, the deadline for registering or the assignment of polling places are all examples of decisions that the Elections Clause
of the constitution allows for the states to make. So the vast majority of
laws that govern elections are handled by the states
and neither the president, the executive or Congress
has anything to really say about that particular regulation. But what about election security? Congress has never passed
significantly legislation mandating security
procedures for paper ballots or electronic ballots,
even elections equipment, including the software
from private vendors is mostly unregulated. And in the absence of federal laws, states have developed their
own security protocols. Many experts have argued that Congress should probably step in and
regulate security procedures to create uniformity amongst the states, including federal agencies, and actually in November of
2019, several federal agencies, including Homeland and Security, the Justice Department and the FBI released a joint statement, naming election security as quote, "A top priority for the
United states government." These agencies were chiefly concerned about threats from foreign
countries and other bad actors. Congress did not pass an
election security bill after this warning. And when Democrats tried to add funding for voter security measures to legislation addressing the COVID-19 crisis, specifically targeting the
safety of voting by mail, President Trump described it as a scam to stop Republicans
from winning objection, stating quote, "You'd never have a Republican elected in this country again if
the money for mail-in voting was included in the bill." And there is some truth to
the President's statement, even if it is a crass political truth, which is that research tends to show that when voter turnout goes up, it favors the Democrats and
disfavors the Republicans, but saying that you actually
want lower voter turnout is a bit like saying
the quiet part out loud, but that takes us to the COVID-19 crisis. Now, before the COVID-19 pandemic, the main concern about the
security of voting systems was the software and
hardware used to tally, scan, collate and report votes could
be manipulated or hacked. And truthfully that probably
deserves its own video because our electronic voting systems are woefully inadequate and really need additional
security measures. But the primary concern changed when the COVID-19 pandemic hit. No longer were people so worried about the electronic voting at
actual formal polling places, but instead, people didn't
want to leave their homes. And since we don't have a system of being able to vote
electronically from home, the emphasis changed to voting
by mail and absentee ballots. And in a way, this seemed
like a perfect solution. People could vote from home, minimum using the risk of transmitting or receiving the COVID-19 virus and many politicians on
both sides of the aisle and many different states were
trying to encourage people to vote by mail. Now I have been using the terms, absentee voting and voting by
mail almost interchangeably, but let's talk about the
difference between those two terms. Practically speaking, as a
regard to an individual ballot, there's almost no difference, if you vote by mail or vote by absentee, you are taking your ballot, you're filling it out at
home or some other place, and you're mailing it into the place it's going to register your vote. Really, the only difference
is in terms of scale, an absentee ballot is sort of an exception to the general rule. If you're unable to go to
a physical polling place or you live outside of
the state temporarily, then you can ask for an absentee ballot, you can fill it out and then
send it into the polling place as an exception to the general rule that you would have to go in in person. Voting by mail is
effectively the same thing, just a difference of scope. Instead of asking for an
absentee ballot as an exception, everyone can vote by mail regardless of whether
they meet the criteria for an absentee ballot or not. And states differ in
terms of whether you need to formally register ahead
of time for a mail-in ballot, or whether the state will just
send every registered voter, a mail-in ballot without
having to preregister. And while voting by mail is certainly getting
a lot of scrutiny now, it's definitely nothing new. Some states, including
Washington, Utah and Colorado have been voting only by
mail for several years. Initially mail-in voting was supported by both Republicans and Democrats. However, President Trump was
disturbed by this development and he started tweeting his concerns about alleged differences between absentee ballots and vote by mail. In the President's mind, it appears that absentee ballots are good and mail-in ballots are bad. - And you get thousands
and thousands of people sitting in somebody's living room, signing ballots all over the place. No, I think that mail-in
voting is a terrible thing. - Does that really happen? The short answer is, no, because there's little
practical difference between the absentee
ballots and mailed ballots. President Trump's own lawyers
even admit this in a lawsuit, challenging Pennsylvania's
mail-in voting rules. The President's campaign says, the quote, "The terms 'mail-in' and 'absentee' are used interchangeably
to discuss the use of the United states Postal Service to deliver ballots to and from elections." So let's dig in a little bit deeper into the various states voting laws. All states allow voters who have a reason they can't vote on election day to request a ballot in advance. Well, a majority of states
currently let all voters ask for a ballot in advance
without needing an excuse for why the person can't vote in person. And some states adhere to
the traditional concept of an absentee ballot. An absentee ballot
technically is an old term that meant someone was voting by mail because on election day
they would be absent from the jurisdiction in which they lived. And 16 states still only
permit certain voters to request an absentee ballot by mail when they have an excuse
for not being able to vote at the polls on election day. Either that they won't be in
the jurisdiction on that day or that they have an
illness or disability. This is the traditional
meeting of voting absentee. In all states, military voters who are
mostly covered by federal law are permitted to vote absentee. The states have a range of other excuses that justify voting absentee
like medical emergency, confinement to jail or
confinement to medical facility, and many states also give special help to those who can't vote in person. For example, in Arizona, election officials will
deliver an absentee ballot to voters confined due
to a medical emergency, but that's in contrast to what's called No-Excuse mailed ballots. Delays in problem at polling locations frequently cause the kind
of disturbing problems with that we see on election day, long lines, broken electronic voting machines, and people turned away
because time ran out. state legislatures address
some of these problems by expanding the number of
days for early in-person voting and eliminating the
restrictions as to who can vote absentee or by mail. This is why 34 states in Washington DC have what's called No-Excuse
absentee or mail-in voting. And a quick note on terminology since state laws are not identical, you may see states using
different terminology like advanced ballots, mailed ballots, by mail ballots, and vote by mail ballots. Although different terms are used generally, they mean the same thing. And although the word mail is
used in almost all of them, this means that the ballots
are mailed to the voter. Voters can send them back via the mail, but all states also allow
the voters to drop them off at designated secure locations. Voters who live in these
states don't need to claim that they will be out of the jurisdiction or that they have any kind
of illness or emergency that makes it impossible
for them to vote in person. And some states like Oregon, Washington, Hawaii and Colorado
automatically send a ballot to every registered voter
and some people hate this. But now is probably a good time to talk about some of the misconceptions
about the security or security problems of
No-Excuse mail-in ballots. The main claim that President
Trump and various Republicans are making is that
No-Excuse absentee ballots are less secure than absentee ballots that require an excuse. President Trump says that
there are very strict protocols for absentee ballots, but that these strict security protocols aren't used for mail-in ballots. And this is strictly
speaking, not factual. The states don't have two separate systems for voters who will be absent
from their voting district and those who prefer to vote by mail. And really each state has
its own security protocols for mailed ballots. And here's a rundown of most
important security features. One is that a ballot can't
be mailed to a person unless they are an eligible
and registered voter. This means that a person must
fill out registration forms and have their address confirmed. Ballots can't be forwarded
to a new address, which means that a person must
also have a current address to receive a ballot in the mail. And generally ballots
arriving before election day are stored in a secure room. Some states use security
cameras to monitor the rooms. Some received ballots also are
stored using special locks, such as locks that require
bipartisan teams to open and ballots often have a barcode, and this means that a voter
can only be issued one ballot. In states with barcoding,
it's incredibly difficult, if not effectively impossible to just simply fill out a new ballot for someone who was
already mailed in a ballot and had their barcode registered. And often states that
mail every voter a ballot use multi-layer security
envelopes in signature matching. And since your verification is one of the major security checks that states use to track ballots, every ballot is tracked in
an election management system that tries to prevent double voting. And often every signature that
is returned on every ballot is then checked against
the signature on file with the voters registration, local officials then determine
if the ballot was returned by an eligible voter. Additionally, the U.S. Postal Service recently sent a vote by mail kit to over 11,000 local election officials. These kits encourage them
to adopt best practices, including the post offices
intelligent mail barcode, which lets mailed ballots
be fully documented as they move to and from voters and can make it easier
to identify legal votes. But obviously no system is perfect and these measures haven't
stopped the President from predicting mass voter fraud. But let's talk about voter fraud and how that differs
from voter suppression. Voter fraud is the illegal
behavior of individual voters, whether you are fraudulently
creating duplicate votes, or you are fraudulently
voting on behalf of someone who you're not supposed to be voting for. Voter suppression is any
effort by the government or other individuals to
prevent or discourage eligible voters from registering
to vote or voting itself. Unfortunately there's a long history of voter suppression
tactics in this country. They can be very simple
and violent measures to prevent people from voting like the murders of James
Chaney, Andrew Goodman, and Michael Schwerner, who were killed for registering black voters
in Mississippi in 1964. Other suppression tactics include requiring forms of identification that people have difficulty obtaining or limiting the hours for early voting so that people have to balance
family and work obligations with the need to show up on election day. This is one reason why often
people argue that election day should be a national holiday so that more people have
the opportunity to vote and don't need to make a choice between going to their job and
voting in a national election and other voter suppression tactics can include trying to
disenfranchise people. For example, making it
a rule that all felons are unable to vote. That is not a constitutional requirement. That if you are convicted of a felony, you automatically lose the right to vote. Suppression tactics can
also include using software that purges people from the
roster of eligible voters. And sometimes all of these
tactics come together. For example, Florida purged
thousands of alleged felons from voter rolls in 2000. This was before the recent
Florida constitutional amendment that allowed felons to vote, which is highly controversial
and is up in the courts as we speak. But in that particular case, later investigators discovered that the system purged many people without felony convictions, simply because they had the
same birthdate as a felon or the first four letters of their name seemed to match a felon's. And in Georgia in 2018, Brian Kemp, who was then the Georgia
secretary of state, purged the voter rolls by
eliminating 850,000 voters who hadn't voted in a while. This was called the use
it or lose it approach. And Kemp was then elected
governor that year. - I'm Brian Kemp, this is Jake. Young man interested
in one of my daughters. - Yes sir. - But apart from voter suppression, which is its own thing and
deserves its own video, there is voter fraud, which is ostensibly what a lot of people in
the Trump administration are worried about. So what is voter fraud
and how common is it? Well, there's several different categories of potential voter fraud. And let's start with something
called double voting. Double voting is when
a person votes twice. Obviously one person can only vote once in any particular election. Now to prove double voting, you just need proof that
someone voted more than once. And most states require voting
documentation to be saved such as signed poll books. Double voting is actually extremely rare. The reason for this, it was just that it isn't worth
it for a criminal conviction to add one incremental
vote to a candidate's total when any particular candidate is going to have thousands
and thousands of votes. Each act of voter fraud in connection with a federal election, risks five years in
prison and a $10,000 fine, in addition to any state penalties. For double voting to throw an election, you would need thousands
of people in a jurisdiction willing to take that risk or you'd need one person
to vote many, many times, which increases the
chance of getting caught. Often what appears to be a double vote is actually just confusion
about the person's identity. In 2004, for example,
two Kathleen Sullivans living in New Jersey were
confused for each other, that's mistake, but not voter fraud. Then you have the classic
kind of voter fraud involving dead voters. The media frequently run
stories about dead people voting only to find out after
further investigation that this is based on clerical errors. More often than the
clerical errors though, is that people will simply
cast an absentee ballot. And then in the interim
before the election is over, they pass away. And while there are certainly stories of people filling the ballot boxes with the names of the deceased at the turn of the 20th century and things like the
Chicago Political Machine of 100 years ago, in the modern era, this
kind of voter fraud is extraordinarily rare. Another common claim is
that people will register with fraudulent addresses like
vacant lots of storage units in order to get more votes. This obviously runs into the same problems with trying to use the same name, to be able to vote more than once, but not many fake address claims have been substantiated over the years. And some states maintain a
list of properties and lots that are allegedly vacant
only to find out later that they actually now hold houses. This actually happened in
Missouri in the year 2000, officials also mistakenly
challenged people like Barbara Taylor, a Washington voter, who listed her address
as a storage facility. It turns out that Taylor
managed the storage company and lived in an apartment on site and had lived there for 12 years. And her address was in fact legitimate. And then there's the possibility
of felony-barred voters. And this one's controversial
because in many states, people who are convicted of
felonies are allowed to vote. Ironically, it's actually far more likely that a state will purge eligible voters from the voting rolls when
they're trying to purge felons than it is for people who
are convicted of felonies from accidentally voting or
even intentionally voting despite felony conviction. And then finally there is
the possibility of voting by non-citizens. President Trump and his advisors claim, that non-citizen immigrants voted on mass, but there's been no evidence
of illegal immigrants, really voting at all, let
alone in large numbers. This could be because the
penalty for illegally voting is deportation while
the payoff is minuscule. Again, one marginal vote
in a general election and of the few documented cases where an ineligible immigrant voted most involve innocent mistakes. Sometimes people who are going through the naturalization process are given voter registration forms, which they turn in before they have actually
become naturalized citizens. As worth considering how difficult this kind of fraud would
be to pull off at scale, in Hawaii, in 2000, there were allegations that 533 non-citizens registered to vote, but an investigation revealed that 144 of those registered voters actually became citizens and
then were eligible to vote. At least 61 asked the state
to cancel their registrations when they realized that
they were ineligible, two others were stopped at
the polls by poll workers and no, never voted and there were no reports substantiating that any ineligible immigrant actually voted in that election. So it's worth asking, how
widespread is election fraud? Well, the Heritage Foundation and which is known as a
fairly conservative think tank maintains a database of documented
instances of voter fraud. They found that over the past 20 years, about 250 million votes have been cast by mail-in
ballot nationally. And during that time, there have been just over 1200
cases of fraud of all forms resulting in 1100 criminal convictions. Of these cases, 204 involve the fraudulent
use of absentee ballots, 143 resulted in criminal convictions, that amounts to about
0.0006% of all votes casts. So when you break that down, that works out to an average of maybe seven or eight cases of fraud involving mailed or absentee
ballots per year nationally. And remember, Oregon
has been mailing ballots to all registered voters for 20 years. So far 50 million ballots
have been cast in Oregon alone with just two verified fraud cases resulting in conviction. That's 0.00004%. But that's not to say that
we shouldn't be concerned about the security of our vote. Obviously the strength of our democracy relies on our votes being
authentic and secure, but we should also probably consider what kinds of fraud cases
have been discovered recently, as it regards is mail-in ballots. The answer is that there's
been almost no fraud considering the millions of
ballots that have been cast. Of course you don't have
to take my word for it. You can actually take the word
of the Trump Campaign itself because the Trump Campaign
is actually filing suit in a number of different states
to try and prevent changes to the way that elections are run, to make it easier for people to vote. And in particular, the Trump Campaign is actually suing in Pennsylvania
to stop the legislature from allowing people to
vote via drop-off mailboxes in places other than
designated voting stations. The Trump Campaign alleged that there was widespread
voter fraud in Pennsylvania, and therefore the changes
could not take place. After a lengthy discovery battle where the defendants demanded
that the Trump Campaign actually provided evidence of the fraud that they claim was taking place, the judge ordered the Trump
Campaign to provide the evidence of widespread voter fraud that the Trump Campaign claimed existed. And when push came to shove, the Trump Campaign provided basically a half dozen news articles that sort of hinted at things going on, which did not actually talk about widespread mail-in voter fraud. So the Trump Campaign's best evidence basically showed nothing of the kind. And notice I said the Trump Campaign rather than the President himself, because it's the company that runs the president's reelection campaign that is responsible for these lawsuits, which is incredibly problematic
because the campaign can use all of the funds at its disposal, which includes the funds
that people have donated for the President's reelection. Those kinds of campaign contributions are being used to further what a lot of people are calling
voter suppression tactics to roll back amendments to voting laws, which would allow for increased
franchisement of people in states like Pennsylvania and Nevada, and believe it or not, the biggest verified
election fraud scandal in recent history was actually
committed in North Carolina by Republican operative,
Leslie McCrae Dowless, who in 2019 was charged
with three felony counts of about destruction of justice, two counts of conspiring to
commit obstruction of justice, two counts of possession
of absentee ballots, perjury and solicitation
to commit perjury. Operatives working for
Dowless illegally collected and sometimes filled in absentee ballots on behalf of Republican
Mark Harris's campaign. Harris won by less than a 1000 votes. And as a result of the fraud, the state ordered a new election. Now, regardless of whether
there is extensive documentation of actual voter fraud or not, that hasn't stopped the President from saying that he wants to do something to change the election. So the question is, can the president change
the entire elective system through executive order? And the answer is that the President does not have the constitutional authority to make unilateral changes
to the election system. These issues are largely
enshrined in federal statutes and state law, which an executive
order can't really touch, but the President can
undermine voting and confidence in the outcome of the election. And that may be what
the President is doing. Recently, new Postmaster
General Louis DeJoy, a Trump donor, just instituted changes in the way that the U.S.
Postal Service works. Reducing overtime for postal workers, even if that means that mail
that's ready to be delivered, sits at the local post
office for additional days. President Trump argues that
this is all about building more efficient postal service, but the timing of these changes coincides with the president's outbursts and tirades against mail-in voting. House Representative, Carolyn Maloney, recently sent a letter about
the reported operating changes to DeJoy complaining that, the quote, "Increases in mail delivery timing would impair the ability
of ballots to be received and counted in a timely manner." To many people, the sudden changes to
the U.S. Postal Service look like a voter suppression tactic. A majority of states reject ballots if they aren't delivered by election day, even if they are postmarked in advance. So a slowdown in the
mail could be disastrous for mail-in ballots that
are sent far ahead of time. That just simply don't
arrive by election day. And the president has repeatedly stated, that the election must be
decided on the same day that voting takes place, even though there is
no federal or state law that requires the actual outcome to be decided on the same day. In reality, the outcome of
the presidential election is not official until the completion of the canvass of votes and
certification of the results. The canvass means
aggregating and confirming every valid ballot cast and counted, which includes absentee,
early voting, Election Day, provisional, challenged,
uniformed and overseas citizens. This doesn't happen in one night. Election Day is November 2nd, states have until December 8th, 2020 to resolve election disputes. And this means recounts and lawsuits must be completed by then. And states have a minimum of 35 days to certify who won the
most votes in that state. The person with the most votes
wins each state's electors with a few exceptions, and the electoral college
meets on December 14th, 2020 and cast their ballots. The ballots are of course
immediately transmitted to various people. And December 23rd is the deadline for receipt of all electors
ballots from all of the states. However, there's no penalty for missing that particular deadline. On January 6, 2021, Congress is going to
meet to count the votes and Inauguration Day is going
to be January 20th, 2021, but as promised the Trump
Campaign is actually making good on the president's threats to
try and stop mail-in voting. And the Trump Campaign has
actually sued the state of Nevada over the state's new law, expanding mail-in voting for
the 2020 general election. According to the lawsuit, making all voters a
ballot makes voter fraud, quote, "Inevitable". The lawsuit also claims that
nailing all voters ballots disenfranchises rural voters violating the Equal Protection Clause. The lawsuit takes issue
with a section of the law requiring County clerks to quote, "Establish procedures for the processing and counting of ballots." The Trump Campaign's
problem with this is that, it's up to each County clerk to establish the best
procedures for counting rather than a uniform system statewide. And you may agree or disagree with the various
different counties systems that they put in place in which there was a standardized
system throughout the state, but the President's
Campaign doesn't have a role in making Nevada law. And remember the
constitution gives the states the right to administer
their own elections. And it probably shouldn't surprise you that making an Equal Protection claim on behalf of rural voters
doesn't make any sense at all. They're not a protected class and I don't see how an
Equal Protection claim works in this particular context. No, personally, I think as
many people of all stripes, whether Democrat or
Republican should vote. Voting is a public good, and both federal and state governments should take more steps
to facilitate voting, especially in these COVID times. And mail-in voting seems
like a pretty easy step to make that happen because we're all staying home more often, not just cause of COVID, but because it's so ridiculously hot out and I've heard stories of
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return used underwear. So do you agree with my analysis? Do you think that voter
fraud is a real issue or is it really just the
tail wagging the dog? Leave your objections in the comments, and check out my other
real law reviews over here, where I talk about all of the crazy things coming out of the Trump administration and all the legal issues that
we've never had to deal with. So just click on this playlist
and I'll see you in court.
Keeping in mind that there has not been one piece of evidence supporting the claim that widespread voting fraud exists introduced in any of 34 legal challenges to state voting law changes.