November 7, 2016

The integrity of the American electoral system is under attack. Republican presidential candidate Donald Trump charges that the 2016 election is “rigged.” That the fix is in. That voter fraud is rampant and that the election will be stolen. Worse, 41 percent of all Americans polled agree with Trump that something is wrong with the election, even as the first votes are being cast, and that somehow the election will be stolen from “the people.” Among Republicans, these fears are prevalent. Recent polls show 73 percent of Republicans convinced that voter fraud is a real and present danger to the trustworthiness of the electoral process; 60 percent believe that immigrants vote unlawfully; 43 percent that people bussed in from out of state will vote illegally using dead people’s names.

In some ways, it’s not surprising that so many Americans, especially Republicans, question the integrity of our electoral system. For the last sixteen years, the United States has been at war with itself over how we organize elections and thus determine which Americans can and cannot vote. Dubbed “the voting wars” by law professor and political scientist Richard L. Hasen, this ongoing fight pits Republicans screaming about the dangers of voter fraud—“dogs are voting in Saint Louis” cried then-Senator Kit Bond as early as 2002—against Democrats more concerned with issues of voter suppression while insisting that the evidence of in-person voter fraud was so scarce as to be nonexistent.  

Though they have the facts on their side, Democrats have largely lost this battle. In state after state, Republican-dominated legislatures have passed laws instituting strict voter ID requirements; imposing narrow limits on early voting times, dates, and places; and implementing hyper-partisan voter registration rules – all in the name of combating voter fraud. Even the U. S. Supreme Court—in 2008’s Crawford v Marion County Election Board—accepted such measures as necessary to preserving voter confidence in the electoral system’s integrity.

Ironically, efforts purportedly intended to convince the American people that the ballot box was safe have had the opposite effect. Convinced that where there is smoke there must be fire, those voicing the constant refrain of warnings about voter fraud seems to have conditioned many voters—in particular Republican voters—to expect voter fraud in elections. Add Trump’s constant drumbeat of cries that the fix is in, and the assumption by so many voters that voter fraud will determine the elections outcome is understandable.

The problem is that in-person voter impersonation fraud—the form of voter fraud that voter ID laws, limited early voting hours, and strict registration rules are designed to combat—is not a major threat to the integrity of the American electoral system, nor, really, has it ever been. Indeed, this sort of voter fraud rarely happens. In a study conducted by Professor Justin Levitt of the Loyola University Law School in Los Angeles, Levitt only found 31 verifiable incidents of in-person voter fraud out of some 1 billion ballots cast since 2000. The number of absentee voter fraud cases is larger, but such fraud is not affected by the anti-voter fraud laws enacted in the last 16 years. Put simply, our electoral system is safe from voter fraud—even if it does occur, the numbers are so small that they are unlikely to affect any electoral outcomes beyond local races such as contests for mayor or for city council. And even there, the numbers make clear that the worry so insistently fomented is largely unwarranted.

This does not mean that it is impossible to fix an election’s outcome. Rather, the best way to fix an election is not via voter fraud but via electoral fraud. Electoral fraud occurs when the people organizing and running an election “game the system” to produce desired outcomes. Unlike voters, election insiders have access to the guts of our electoral system. They pick the voting machines, design the ballots, and decide where and when voting occurs; they determine the rules of voter eligibility, create voting districts, and set the requirements for registering to vote; and, of course, these are the people who count the votes. Electoral fraud has the added advantage that it can be carried out without lawmakers or election supervisors ever breaking the law. In fact, most techniques of election fraud have their effects through laws and regulations—a process I call administrative gerrymandering.

Whereas traditional gerrymandering is about the drawing of legislative-district boundaries to force partisan outcomes in elections, administrative gerrymandering manipulates the rules and procedures that organize, implement, and execute the electoral process to force partisan outcomes. Selective voter purges, unequal distribution of voting machines based on class or party criteria, and partisan administrative rulings from state election officials are but three of many perfectly legal actions available to those controlling a state’s electoral machinery and seeking to shape the outcome of voting. Other options include the continued decentralization of electoral processes and procedures which allow local officials a free hand in manipulating who could and could not vote; or the implementation of such partisan ”reforms” as Voter ID requirements, shortened early voting hours and locations, and felony disenfranchisement rules. The major impact of such “reforms” is to exclude unwanted voters from the polls. By selectively shaping the way that we organize and count votes, and primarily by limiting who can vote or how we vote in an election, government officials can effectively “control,” even arguably “fix” elections in which outcomes are largely predetermined based on who gets access to the polls.

American history is replete with examples of partisan electoral rules devised to shape the outcomes of elections. In 1798, as part of the notorious Alien and Sedition Acts, Federalists in control of the national government passed the Naturalization Act of 1798 requiring fourteen years residency before immigrants were permitted to petition for citizenship (with an additional five years delay before they received naturalized citizenship), all in an effort to exclude from the ballot box immigrant supporters of the Democratic-Republican Party. The most explicit examples of administrative gerrymandering of the electoral process, however, were measures promoting race-based voter denial across the South. Starting in the late 1880s southern states adopted a mix of techniques aimed at excluding southern blacks from the ballot box. Among the techniques used to exclude black voters were: the use of unfairly applied literacy and/or understanding tests in which voters had to read, understand, or interpret any section of the state constitution to the satisfaction of a white (and usually hostile) election official; complicated registration requirements that excluded minority voters on technical grounds; and financial barriers such as poll taxes. Intimidation and threats of violence also were effective means of keeping southern blacks from the polls. One of the simplest ways of undermining the black vote was to set up polling places in areas inconvenient for blacks.  Finally, in an effort to exclude all possibility that southern blacks could have a voice in government through the electoral process, state legislatures across the south adopted rules prohibiting blacks from voting in the politically dominant Democratic Party’s primaries. Because the Democratic candidate almost always won in the general election, this exclusion denied southern blacks a chance to participate in the one election that mattered.

To all this, we can add the impact of legislative gerrymandering. Before the 1960s, states gerrymandered electoral outcomes by permitting gross cases of malapportionment with some districts over-represented and others under-represented. In some states, the disparity in apportionment was extreme, with a mere twenty percent or less of the state population electing a majority of that state’s legislators. In others, closer to fifty percent of a given state’s population elected a majority of the legislators, and in a few states a slim majority of the electorate actually had a say in electing the majority of members in the legislature. Yet no state had anything close to true numerical equivalence between legislative districts based on population. Here, too, race often played a role. In Georgia, for instance, a “county unit” system (distributing legislative seats so that counties of differing sizes received a set number of seats, no matter what their actual population numbers were) gave rural districts with their smaller population totals a greater influence than their voting numbers would have indicated. This rural bias allowed the dominant Democratic faction led by U. S. Senator Herman Talmadge to put together the votes of enough ‘two-unit’ counties in South Georgia to overcome opposition strength, which included black voters, in metropolitan areas. Lose the county unit system, Talmadge warned, and “there won’t be enough votes in the whole of the Second Congressional District to match the bloc Negro vote in Atlanta.”

Rulings by the Supreme Court requiring decennial redistricting and passage of the Voting Rights Act of 1965 largely put an end to many of these overt forms of voter denial. However the drive to adopt election rules to suppress voters and thus to shape electoral outcomes remained strong. Unable to blatantly exclude unwanted voters anymore, partisan politicians began to seek ways to dilute the impact of minority or partisan opponents’ votes. This pattern of vote dilution involved voting lists purges, at-large elections, and full-slate and majority-vote requirements. Mississippi, for instance, in direct contradiction of both the intent and objectives of the Voting Rights Act, amended its state constitution in 1966 to permit the consolidation of adjacent counties as a direct means of undermining black majorities. In Louisiana, white officials “actively solicited absentee ballots from whites and set up voting ‘substations’ to make it easier for whites to cast their ballots,” while refusing to do the same for black voters. In Texas, responding to the demise of the poll tax, the legislature quickly adopted an equally burdensome annual voter registration requirement, one that demanded that voters reregister every year between November 1 and February 1 for the next year’s election. As a district court judge noted in overturning this law in 1971, it was “beyond doubt that the . . . Texas voter registration procedures tend to disenfranchise multitudes of Texas citizens otherwise qualified to vote.” Even as late as 2008, secret recordings showed Alabama election officials plotting to undermine a ballot initiative that would have increased minority voting. Allow the initiative to pass, they were recorded saying, and “every black, every illiterate,” would be “bused [to the polls] on HUD financed buses.”

Which brings us back to the current election. Trump has it backwards. As history shows, the threat to the integrity of our electoral system is not voter fraud but voter suppression; not adding votes illegally but subtracting voters (and hence votes) legally. So yes, our electoral system is ‘rigged.’ In fact, it always has been rigged in one form or another. So long as we allow the running of elections to be a partisan endeavor, so long as we let those who benefit from an election’s outcome to organize how we vote, we will always have ‘rigged’ elections. What we as a people have to decide is how we want to rig our elections—to increase voter participation or to minimize it. Both options come with costs. Increasing voter participation risks mistakes that resemble voter fraud; safeguarding elections against voter fraud and manipulation risks keeping voters from the polls. In either case, the result is “rigged.” But some “rigged” outcomes are better than others. In in the end, the question we have to ask ourselves is: do we want more or less democracy in America.

Charles L. Zelden, Professor of History and Political Science at Nova Southeastern University in Fort Lauderdale, is the author of four books on the history of voting and elections in America. Among them are Voting Rights on Trial (2002), The Battle for the Black Ballot: Smith v. Alwright and the Defeat of the Texas All White Primary (2004) and Bush v. Gore: Exposing the Hidden Crisis in American Democracy (2008).