Many states are establishing or empowering law enforcement agencies, often run by partisan actors, to pursue rare cases of voter fraud. 

by Liz Larsen and Julian Ramos, MPP Candidates
April 5, 2023

The Big Picture

Many lawmakers falsely claim that fraudulent votes delegitimized recent presidential and midterm elections. However, research shows that voter fraud is virtually nonexistent, with an incident rate between 0.0003% and 0.0025%.¹ Many more studies, including one commissioned by the Trump campaign, conclude that most allegations of voter fraud are due to voter mistakes, clerical errors, or bad data-matching practices.² Despite this evidence, Republican state legislators are creating, expanding, or harshening criminal penalties for voters and election workers under the guise of protecting elections against voter fraud. 

In support of these policies, many states are redirecting resources to creating or empowering enforcement agencies to investigate and prosecute voter fraud allegations. These agencies consist of two different groups: election police units and voter integrity units. Election police units can investigate and arrest individuals for alleged voter fraud violations. Voter integrity units have a more constrained capacity to investigate crimes but cannot also charge and prosecute individuals. 

Many of these laws also allow for partisan actors to run the agencies. This has allowed Republican district and state attorneys general to prosecute election crimes aggressively. Some cases that in the past have been seen as honest mistakes are now receiving felony prosecutions.

The Research You Need to Know

In April 2022, Florida passed a law establishing the Office of Election Crimes and Security. This law gives Governor DeSantis unprecedented power to initiate criminal investigations into election-related crimes.³ Housed within Florida’s Department of State, this agency has a $1.1 million budget, 15 employees, and the authority to conduct preliminary investigations into allegations of election crimes or irregularities. The same bill increases penalties for volunteers and get-out-the-vote groups who make relatively minor election infractions. For instance, the law makes dropping off more than two different people’s ballots a felony. Additionally, the fine for volunteers who make mistakes on voter registration forms and mail ballot applications increased from $1,000 to $50,000.⁴ 

Georgia also passed a law that expanded the Georgia Bureau of Investigation's power to pursue election violations.⁵ This agency has a $580,000 budget, four employees, and subpoena power over election-related documents. The Texas legislature, meanwhile, has proposed bills that give the secretary of state the power to appoint state police officers as "election marshals" to investigate election law violations and file criminal charges. Other Texas bills would impose harsher penalties for election crimes, expand the state Attorney General’s ability to initiate prosecutions for voter fraud, and require local district attorneys to prosecute all election crimes or face civil penalties.⁶ 

Other states, like Virginia, Wisconsin, and Arizona, have passed bills that created election integrity units run by partisan actors. Additionally, Ohio and Missouri currently have state bills moving through their state legislatures to establish new election integrity units in each state.

Another set of election policing bills focuses on election workers. So far in 2023, at least 16 bills in 8 states would impose new criminal or civil penalties on election officials for routine election activities or human error.⁷ Two bills in Arizona and Texas would allow partisan figures to call for an audit process that could result in civil penalties on election workers. These bills would allow candidates or political parties to demand that a local election official provide an explanation and documentation if they believe the official violated the election code or that there are “irregularities” in the results. However, there is no definition for “irregularities” in either of these bills. If the candidate or party is unsatisfied with the county official’s response, they may request an audit by the secretary of state, who could assess civil penalties on the election official for any unremedied violations of the election law. 

In Nebraska, election workers can be charged with a misdemeanor for failure to ask for and verify a voter's ID under a new bill proposed by the state legislature.⁸ Bills in Oklahoma, South Dakota, and West Virginia create criminal or civil penalties for failing to allow poll watchers increased latitude to observe election processes, making it harder for election officials to deal with disruptive poll watchers.

Despite the vast amount of time and money that has been devoted to election fraud cases, there has been limited success in prosecuting voter fraud. Out of 75 referrals for possible election fraud made in Florida during the 2020 election, only four cases have been prosecuted.⁹ Texas opened at least 390 cases of potential election crimes against both voters and election workers between January 2020 and September 2022. However, there were only five election-related convictions during that period.¹⁰ Wisconsin’s election commission referred 95 incidents of voter fraud to local prosecutors, but only 16 people were charged.¹¹  

The resources put toward prosecuting these cases are highly disproportionate to the number of voter fraud cases that receive prosecutions. However, even when these investigations do not result in criminal charges, they can be used as a pretense to discourage people from voting or from participating in the electoral process.

The Human Impact

For one woman, Crystal Mason, a misunderstanding at the polls led her to be sentenced to 5 years in prison for voter fraud. Mason went to vote in the 2016 presidential primary election when she learned she was not on the voter rolls. On the advice of the poll worker, she filled out a provisional ballot. However, she was on supervised release for a federal tax fraud conviction, making her ineligible to vote. Her provisional ballot was never officially counted and a few months later, she was arrested.

The main piece of evidence used to convict Mason of voting illegally was an affidavit that she signed before casting a provisional ballot swearing that “if a felon, I have completed all my punishment including any term of incarceration, parole, supervision, period of probation, or I have been pardoned.”¹² Mason said she did not read the entire affidavit, nor did she know she was ineligible to vote. No one from the probation office had informed her she was still ineligible to vote while under her supervised release, according to testimony from her probation supervisor. However, a trial judge charged her with a second-degree state felony and a 5-year prison sentence.

Mason had spent years rebuilding her life after her previous conviction. In addition to maintaining a full-time job, she attended school and started her own business. Additionally, she had three children and four others who were in her care at the time. However, that was upended when Mason returned to federal prison. She recalls that, “it was the hardest thing I've done to actually go back to a place that you said you would never go back to. To leave your children again. I wasn't moving forward. I was moving backwards and this wasn't supposed to be happening to me."¹³ After being arrested, Crystal lost her job and her son left college to be closer to his family. Mason was released on bail after serving more than seven months in prison. However, she was not allowed to live in her home and instead had to stay in a halfway house an hour away from her home for some time.

Mason’s case is still making its way through the legal system. In May 2022, the highest criminal court in Texas ruled that she would have her case reconsidered by an appeals court. The Court of Criminal Appeals disagreed with the lower court's claim that Mason’s unawareness “was irrelevant to her prosecution,” opening a channel for overturning the conviction.

Mason said in a statement, “I am pleased that the court acknowledged issues with my conviction, and am ready to defend myself against these cruel charges. My life has been upended for what was, at worst, an innocent misunderstanding of casting a provisional ballot that was never even counted. I have been called to this fight for voting rights and will continue to serve my community.”¹⁴

The case of Mason, who is Black, has sparked anger among voting rights advocates who say her experience is one of many that highlight racial disparities in the criminalization of voter matters. There is ample evidence to support these claims. In Texas, where Mason’s case took place, there are substantial racial and gender disparities in prosecutions made by Texas Attorney General Paxton’s Election Integrity Unit.¹⁵ Since 2015, when Paxton took office, 72% of the Election Integrity Unit’s prosecutions have been against Black and Latinx individuals. Further, Paxton’s office disproportionately targeted women of color; about 45% of the total prosecutions from the Election Integrity Unit have been brought against Black and Latinx women.

Key Takeaways

• Several Republican-governed states are creating law enforcement agencies to investigate and prosecute alleged cases of voter fraud with increasingly harsher consequences. 
• These states have poured ample resources into these agencies, but relatively few election-related crimes have been successfully prosecuted. However, even when these investigations do not result in criminal charges, they can discourage people from voting or participating in the electoral process.
• These new election laws and agencies have disproportionately targeted voters of color and women.

More Information

For more information, we recommend the following reports and articles: 

• Voting Laws Roundup: December 2022
• Ten Questions that Will Shape Democracy and Voting Rights in 2023
• Arrests Over Voting Escalate a “Culture of Fear” in Florida
• Voters of Color Appear to Be Most Frequent Targets of Texas Attorney General Ken Paxton’s Election Integrity Unit

Citations

1. “The Truth About Voter Fraud | Brennan Center for Justice.” Accessed March 4, 2023. https://www.brennancenter.org/our-work/research-reports/truth-about-voter-fraud.
2. Ibid.
3. Nichanian, Daniel, and Kay-Ann Henry. “Florida Creates a New Police Force to Investigate Elections.” Bolts, March 16, 2022. https://boltsmag.org/florida-new-police-force/.
4. Ibid.
5. Ax, Joseph. “Georgia Republicans Pass Bill Empowering Law Enforcement to Investigate Elections.” Reuters, April 5, 2022, sec. United States. https://www.reuters.com/world/us/georgia-republicans-pass-bill-empowering-law-enforcement-investigate-elections-2022-04-05/.
6.  Nichanian, Daniel, and Kay-Ann Henry. “Florida Creates a New Police Force to Investigate Elections.” Bolts, March 16, 2022. https://boltsmag.org/florida-new-police-force/.
7.  “Voting Laws Roundup: February 2023 | Brennan Center for Justice.” Accessed March 4, 2023. https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-february-2023.
8. Ibid.
9. 264. “The Election Police Are Coming | Brennan Center for Justice.” Accessed March 4, 2023. https://www.brennancenter.org/our-work/analysis-opinion/election-police-are-coming.
10. ProPublica, Cassandra Jaramillo and Joshua Kaplan. “These Texans Were Trying to Help Run Elections. Then Ken Paxton’s Office Launched Criminal Investigations.” The Texas Tribune, November 3, 2022. https://www.texastribune.org/2022/11/03/texas-election-workers-voter-fraud-paxton-midterms/.
11. 264. “The Election Police Are Coming | Brennan Center for Justice.” Accessed March 4, 2023. https://www.brennancenter.org/our-work/analysis-opinion/election-police-are-coming.
12. Ura, Alexa. “Crystal Mason’s Contentious Illegal Voting Conviction Must Be Reconsidered, Criminal Appeals Court Says.” The Texas Tribune, May 11, 2022. https://www.texastribune.org/2022/05/11/crystal-mason-illegal-voting-texas/.
13. American Civil Liberties Union. “Voters of Color Appear to Be Most Frequent Targets of Texas Attorney General Ken Paxton’s Election Integrity Unit.” Accessed March 4, 2023. http://www.aclu.org/press-releases/voters-color-appear-be-most-frequent-targets-texas-attorney-general-ken-paxtons.
14. “Texas Appeals Court Sides with Black Woman Fighting Voting Fraud Conviction.” Accessed March 9, 2023. https://www.courthousenews.com/texas-appeals-court-sides-with-black-woman-fighting-voting-fraud-conviction/.
15. American Civil Liberties Union. “Voters of Color Appear to Be Most Frequent Targets of Texas Attorney General Ken Paxton’s Election Integrity Unit.” Accessed March 4, 2023. http://www.aclu.org/press-releases/voters-color-appear-be-most-frequent-targets-texas-attorney-general-ken-paxtons.