The truth behind voter fraud in Indiana

If ever there was a time to reveal how Indiana elections could be rigged, it was in April 2008.

That's when the U.S. Supreme Court was weighing whether Indiana lawmakers could require voters to show government-issued identification at the polls. The state's Republican-controlled legislature had passed a stringent voter ID law in 2005 based on the argument that it was necessary to prevent voter fraud. The law was challenged in court.

Justice John Paul Stevens, writing for the Supreme Court's majority in Crawford v. Marion County Election Board, said the state's "interest in counting only the votes of eligible voters" justified voter ID. Thus, the law was ruled constitutional.

But in doing so, Stevens also included in his opinion a statement that continues even today to strike at the core of ongoing — and often partisan — debates over the prevalence of voter fraud. He said there was scant evidence that anyone in Indiana had ever illegally voted in person.

"The only kind of voter fraud that (Indiana's voter ID law) addresses is in-person voter impersonation at polling places," Stevens wrote. "The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history."

Indiana has seemingly exhausted the topic of voter fraud. Republicans passed a law that they said would stop it. Democrats argued that it never existed to begin with. Yet fears of nefarious election activities have been stoked again, by a presidential candidate warning of a "rigged" election and by Indiana's secretary of state raising the specter of "voter fraud."

The latest speculation raises questions about what constitutes voter fraud, whether there is new evidence of it in Indiana and whether the state's elections are at risk of being taken over by partisan forces.

'Voter fraud is real'

Republican presidential nominee Donald Trump has made plenty of headlines for asserting that his race against Democrat Hillary Clinton could be stolen by "large-scale voter fraud." But Trump isn't alone.

Trump's running mate, Indiana Gov. Mike Pence, raised eyebrows during an Oct. 18 campaign stop in Fayetteville, N.C., when he echoed Trump's fears.

"You know, my running mate the other day started talking about the possibility of voter fraud at polling places, and the media went a little bit crazy about it," Pence said, according to reports. "But don't kid yourself. Voter fraud is real in pockets around this country."

To determine whether Pence is right requires a definition of voter fraud. A 2006 U.S. Election Commission report concluded that the term "voting fraud" is problematic because it refers only to a "voter who intentionally impersonates another registered voter and attempts to vote for that person."

The Supreme Court couldn't find a single instance in which that has happened in Indiana. Justin Levitt, a professor at Loyola Law School in Los Angeles, found in 2014 that only 31 credible instances of voting fraud had occurred out of 1 billion votes cast in the U.S. since 2000.

Michael Pitts, a law professor and dean's fellow at the Indiana University Robert H. McKinney School of Law who has researched in-person voter fraud, said there is little opportunity for people to misrepresent themselves at polling places, especially because of Indiana's voter ID law.

"There is not a lot of evidence of in-person voter fraud, which is related to photo-identification laws. What a photo ID law aims to prevent is voter impersonation fraud — somebody walking into a polling place and impersonating somebody else," Pitts said. "Presumably, if you have a government-issued photo ID, that type of voter impersonation fraud becomes enormously hard, because you seemingly have to create a fake government ID."

That doesn't mean that election crimes — a broader term favored by the Election Commission — don't occur. They just typically don't happen at a polling place. While experts agree that election crimes almost certainly can't swing the result of a presidential race, they can cause big problems for local contests where results can sometimes turn on a handful of votes.

Handful of cases

Low-level election crimes likely happen in every cycle with absentee ballots, said David Orentlicher, an Indiana University law professor.

This can happen if a voter sends in absentee ballots for himself and his spouse, or for a child who is away from home, he said.

Yet widespread, systemic voter fraud meant to tip an election is unusual, Orentlicher said. Prosecutors generally pursue charges only in cases that involve corruption allegations against candidates, or candidates' supporters, relating to voting.

Orentlicher pointed to a 2003 East Chicago case in which 17 people faced charges related to voter fraud in a mayoral primary election, including a Democratic precinct committeeman who was accused of giving a gift in exchange for a vote.

The Indiana Supreme Court ordered a rerun of the primary of then-Mayor Robert Pastrick. Then-state Attorney General Steve Carter, who asked the court to intervene, said it was the first time the justices had ordered a new election.

The Indiana secretary of state's office does not keep a database of incidents of election crimes. But a search of court records and IndyStar archives indicates that only a handful of such cases have resulted in state or federal charges in the past 15 years.

Valerie Warycha, a spokeswoman for the office, said two cases of voter fraud have been prosecuted by the state during Connie Lawson’s tenure as secretary of state: Butch Morgan, the St. Joseph County Democratic Party chairman, was convicted in 2013 for forging signatures on petitions to get Democratic candidates on the state ballot. Former Democratic state Rep. Mike Marshall in 2013 was sentenced after he was convicted of absentee ballot fraud.

Tim Horty, a spokesman for the U.S. Attorney’s Office of the Southern District of Indiana, said prosecuting voter fraud cases on the federal level is rare.

In 2014, Max Judson, a councilman in Sullivan County, was charged by federal prosecutors with fraudulently filling out absentee ballots in a primary election. Court documents say Judson beat his opponent by only 18 votes. Some of those votes, federal prosecutors said, were absentee ballots that Judson illegally solicited from voters who did not live in Sullivan County. The case is pending.

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Andre Miksha, Hamilton County’s chief deputy prosecutor, said the most notable instance of voter fraud in Indiana could be the 2012 conviction of former Republican Secretary of State Charlie White. He was convicted of six Class D felony charges, including voter fraud, perjury and theft. Prosecutors said he voted and took pay as a Fishers Town Council member of a district in which he no longer lived.

Miksha paused to think of other examples.

“Nothing is showing up off the top of my head," he said.

New allegations

The state's list of election crimes, however, could be growing.

Lawson, Indiana's Republican secretary of state, last week announced her office found voter registration forms containing first names and birth dates different from what voters provided. Her office turned over records to the Indiana State Police for review.

Top Indiana election official alleges more voter fraud

"We believe this may be a case of voter fraud," Lawson said in a statement.

That announcement came on the heels of a State Police investigation into a group called Patriot Majority USA, a Washington, D.C.-based nonprofit that runs the Indiana Voter Registration Project. The group focuses on registering new voters.

According to State Police, at least 10 of the group's voter registration forms from Marion and Hendricks counties included fraudulent information. State Police officers raided the group's offices Oct. 4  and days later alleged fraud in 56 counties.

While the Patriot Majority USA investigation has resulted in specific allegations, Lawson's assertion of "voter fraud" is vague. Democrats have accused her of using the term to rile up Republican voters at a time when party leaders, including Trump and Pence, already are sounding the alarm for fraudulent activity.

"She jumped to a very harsh conclusion that has bad connotations this year," said Emily Shrock, the director of voter protection for the Indiana Democratic Party. "There are a number of things that can be voter fraud. Clerical errors made in a clerk's office are not voter fraud."

Democrats blast Indiana 'voter fraud' talk as partisan

State Republican Party officials did not return calls seeking comment.

Absentee ballots

While states and counties have systems in place to protect the integrity of elections, the major political parties also police themselves during elections. The parties dispatch volunteer attorneys and watchers across the state to monitor polling activity and respond to voters' concerns.

While Republicans might be on the lookout for fraudulent activity, Democrats say they're making sure voters aren't disenfranchised. Shrock said she's unaware of any concern raised by a voter in recent years that wasn't resolved.

Illegal activity is much more likely to happen before Election Day and involve absentee ballots, said Rick Hasen, a professor specializing in election law at the University of California-Irvine School of Law.

Allegations of voter fraud often come up during elections, he said, but claims from Trump about rigged elections have brought the issue to the forefront.

“People are especially looking for it because Trump is talking about it,” Hasen said.

Hasen drew a distinction between the type of voter fraud Trump has discussed — fraud that seeks to steal elections — and voter registration fraud that is meant to make money. Voter registration groups have been accused of submitting false registrations to make money, he said.

In a famous 2008 case, the Association of Community Organizations for Reform Now, ACORN, was accused of submitting fake voter registration cards in Lake County. Officials found registrations under deceased people's names and questionable names such as “Jimmy John’s."

ACORN, which is now defunct, faced similar accusations in other states.

When allegations of voter fraud come up, Hasen said, election officials such as Lawson must keep a cool head when addressing them.

County officials report no widespread issues with voter records

No fake voters

Most experts agree on three things: Election crimes happen. They almost always occur outside polling places. And they don't influence national elections.

"There’s no question some amount of voter registration fraud happens," said Pitts, the McKinney law school professor. "It generally seems to be related to people being paid to collect registration forms. If you get paid to generate registration forms, you’re incentivized to make them up. That is certainly fraud.

"But there isn’t much evidence that voter registration fraud translates into actual people coming to the polls under a false identity. And that’s a distinction that needs to be drawn. Fake registration forms happen, but whether that actually translates into a fraudulent vote is a totally separate question."

Although an occasional "Jimmy John's" might be registered to vote in Indiana, it would be virtually impossible for someone to show up at a polling place and cast a vote under that name. If there was evidence that it could happen, Stevens would have cited it in his 2008 Supreme Court opinion upholding voter ID in Indiana, said Luis Fuentes-Rohwer, a professor and Harry T. Ice faculty fellow at the Indiana University Maurer School of Law.

Instead, voters can be confident that the results of the Nov. 8 election are legitimate, especially in statewide and national races.

"Justice Stevens would have been well-served if he had evidence of voter fraud in the state," Fuentes-Rohwer said. "If he had voter ID examples of fraud, he would've given them to us. He would've used them to support his case. He didn't. He didn't have them."

IndyStar reporters Fatima Hussein, Tony Cook and John Tuohy contributed to this story.

Call IndyStar reporter James Briggs at (317) 444-6307. Follow him on Twitter: @JamesEBriggs.

Call IndyStar reporter Madeline Buckley at (317) 444-6083. Follow her on Twitter: @Mabuckley88.

What is voter fraud?

Title 3 Article 14 of Indiana Code indicates that more than a dozen types of violations constitute voter and election fraud.

Here are a few violations that are listed in the statute:

• “Disclosure of voter’s vote to another”

• “Unauthorized delivery of ballots”

• “Registering to vote more than once”

• “False representation of ballot to non-English speaking voter”

• “Fraudulent application for registration or absentee ballot”

• “Fraudulent subscription of another person’s name”

• “Withholding information or furnishing false information to poll taker”

• “Tampering with ballot container”

• “Registering to vote more than once”

• “Unauthorized release or removal of registration materials”