Here are some of the most frequent questions I’ve gotten from election workers and the general public about voter registration. By and large, these questions reflect our unspoken fears about elections, and show how often our common-sense understanding of the world diverges from the statutes that define how elections work.
QUESTIONS THAT BELIE ANXIETY ABOUT ELECTION FRAUD
QUESTION: What would happen if someone registered to vote in New Jersey, but then also registered to vote in Texas? Could they cheat and vote twice in the presidential election?
ANSWER: The states reciprocate with each other to the extent that they are able to, by forwarding notices of new registrations to the state voter registrars in the old state of residence when someone lists that state as their former state of residence on the voter registration application. Assuming that the voter has moved from Texas to New Jersey, the Texas registration would be cancelled on receipt of notice of the subsequent registration in New Jersey.
But that’s not really why people ask this question. People ask this question because pundits and policymakers encourage fretting over the relative lack of formal preemptive mechanisms that keep criminals from illegally voting. The fear-mongering is likely motivated by bad intentions on the part of these opinion-makers, but the fears encouraged by this sort of talk tend to be sincerely held, even when poorly reasoned.
A determined individual could vote in more than one jurisdiction, a fact that fills some voters with great anxiety. But a determined individual could also rob a bank, despite the disincentives to do so. There are a number of disincentives that discourage people from illegally voting (and voting more than once in an election is certainly illegal).
First, the voter in question would have to provide basic identifying information in order to register to vote in more than one state. The mere submission of an application to register to vote creates a paper trail that leads back to the voter. A person is probably less inclined to break the law when he or she has to provide a residence address and a name.
Second, as crimes go, double voting isn’t a particularly attractive criminal activity. At least with bank robbery, there’s the possibility of getting some money out of the vault. With an election, there’s the slim chance that an illegal vote will change the outcome, and the more realistic fact that this grassroots illegal vote likely won’t affect anything, and will just put the illegal voter in danger of going to prison.
QUESTION: But what if a huge number of people collectively engage in voter fraud, and they all register to vote in multiple jurisdictions? Wouldn’t that be a different story?
There are a lot of variations on this question, such as, “What will keep the wrong people from voting?” and “How do I know that my ballot will be counted?”
The question “behind the question” could really be paraphrased as, “What is it that protects the integrity of this or any election?”
The answer is, “A lot of things, including the basic predispositions of people not to break the law, the cultural reverence for the symbolism and ritual of voting, the admonishments of the various affidavits that a voter must subscribe to in order to actually cast a ballot, the formal authority of the state to punish election fraud, the capacity of parties to an election to contest the outcome and review the record, the inherent altruism of self-interest that should arise on each side of every election (i.e., smart people don’t cheat, because cheating invites retaliation in kind), the tendency of potential criminals to be rational actors, the fear of being caught, etc.”
Suppose that a criminal intended to pull off a really huge crime, but realized that there was no way to do it alone. So the criminal enlisted the help of a few hundred thousand co-conspirators, all in order to steal the British crown jewels, or the gold out of Fort Knox, or whatever. How would the criminal enforce secrecy and loyalty among all those conspirators? How would the group cover its tracks?
The same organizational problems would come up in a criminal conspiracy involving lots and lots of people registering to vote in multiple places and illegally voting, but compounded by the fact that voter registration is a public act that leaves a paper trail pointing right back at the participants. How would a criminal fare if he or she had to approach a large group of strangers and announce, “Hey, if you fill out, sign, and file these applications, in which you identify yourselves publicly to an organ of government as a resident of this jurisdiction, we can pull off a masterful criminal caper.”
The truth is, if a criminal were really intent on subverting the election (and such people do exist), he or she wouldn’t go about it by rounding up busloads of illegal voters – in the parlance of hard-boiled detective fiction, that’s a chump move, a pathetic amateurish effort. People who actually steal elections adopt methods that subvert the tabulation of votes at the source. That means stuffing ballot boxes, stealing ballots, rigging the contest. Why would a criminal mastermind go to all the trouble of accumulating an army of conspirators and then actually have them go vote, one by one? That requires as much or more effort than would have been required to get the votes honestly. Instead, why not just install the metaphoric equivalent of a false bottom on a ballot box, so that the outcome of the election is scripted?
And that brings up a good point. As a society, we sometimes err on the side of limiting fraud, and we sometimes err on the side of voter convenience. Security and convenience are not a perfect dichotomy, but they are goals that can interfere with each other.
One question that people rarely ask, but that I wish was more prominent, is this:
QUESTION: “What do our policy choices reveal about our attitudes toward the exercise of suffrage?” For instance, why don’t lawmakers insist that absentee voters must provide picture I.D., but demand proof of identity for in-person voting? Why are some voters exempted from particular requirements to vote, while others are not? (In Texas, security concerns have prompted voting procedures wherein current and former judges and their spouses don’t have to confirm their residence addresses in order to vote). To what extent are our voting laws nothing more than the visible expressions of our shared institutional and cultural neuroses?
QUESTIONS THAT BELIE ANXIETY ABOUT THE FITNESS OF VOTERS
QUESTION: I know of a number of elderly people who are getting voter registration applications, but who are in assisted-living and suffering from dementia. I think this must be some kind of scam, because obviously those people can’t vote.
ANSWER: Admittedly, elderly voters as a group are sometimes the target of hard-sell pressure tactics to support a particular candidate, and are sometimes victimized.
But this sort of question is based on a superficial understanding of legal capacity, and is consistent with what is a sometimes patronizing dismissal of the civic rights of institutionalized people. Residents in assisted-care facilities are disproportionately often denied an opportunity to vote due to a lack of transportation, a lack of assistance in getting a ballot by mail, or a reluctance to promote voter registration, regardless of their mental state.
A probate court may rule that a person is mentally incapacitated for all purposes (including voting), or may rule that a person is mentally incapacitated for some purposes (which might or might not include voting). In the absence of such a determination, one should presume that a person who is otherwise eligible to vote is entitled to exercise that civic authority.
This is regardless of one’s personal assessment of a voter’s mental capacity, because such assessments are not conclusive determinations of a person’s legal status. If a voter’s mental capacity is a concern, the probate court stands ready to issue a formal ruling that will settle the matter.
This question has a few variations that are a bit troubling (especially when asked by nursing home administrators). One is, “Isn’t it true that a person who has granted power of attorney to a relative can’t vote any longer?” (Whether or not a power of attorney is given is completely unrelated to mental capacity. Fully capable people use power of attorney forms for business and personal reasons to ensure that decisions get made).
Honestly, imposing any sort of subjective test of voters’ intellectual capacity is dangerous, given that the test-giver has the power to exercise tyranny. That’s one reason why the bar needs to be set pretty low when it comes to mental capacity to vote. A person could be incapable of recognizing faces, unaware of the passing of time, and ignorant of his or her estate, but nevertheless could subscribe to sincere (and even complex) political views.
Again, the best practice is to presume that a person is capable and eligible to vote. I react with skepticism whenever someone suggests that an individual should not be able to vote, and my unspoken reply is “Really? Prove it.”
In fact, skepticism is, in my opinion, the best natural reaction to any statement or argument that would limit voting rights for a person or group. The best election workers internalize a presumption in favor of the voter and in favor of the validity of the election itself, whatever its outcome. It’s an attitude I would like to see more from the general public as well.
As with questions born out of anxiety over the fairness of the election, questions about fitness to vote are really variations on another question “behind the question,” which is this:
“How can I be sure that the voters know what they are doing?”, or “How do I know that the voters won’t make the wrong choice?”
The answer to this is, “You can’t, and you don’t.” The voters may not know what they are doing, and they may make the wrong choice. There are some general institutional safeguards against truly disastrous popular decisions (such safeguards include a well-educated and well-informed populace, independent journalism, shared cultural norms consisting of a healthy fear of anarchy, formal procedures that limit dramatic shifts in the law, caution in the face of change, etc.), but those safeguards are only as good as we let them be. Ideally, the only people who should be allowed to vote are the people who always choose the wisest and best possible outcome. Unfortunately, we don’t know who those people are, and they might not be us.