We analyzed a conservative foundation's catalog of absentee ballot fraud: It's not a 2020 election threat

Pat Beall, USA TODAY; Catharina Felke, Sarah Gelbard, Jackie Hajdenberg, Elizabeth Mulvey and Aseem Shukla, Columbia Journalism Investigations, USA TODAY

Leila and Gary Blake didn’t want to miss elk hunting season.

It was 2000, and the election conflicted with their plans, so the Wyoming couple requested absentee ballots.

But the Blakes had moved from 372 Curtis St. five miles down the road to 1372 Curtis St., crossing a town line. When they mailed their votes using the old address, they were criminally charged. The misdemeanor case was settled with $700 in fines and a few months' probation, but two decades later, the Blakes are still listed as absentee ballot fraudsters in the Heritage Foundation’s Election Fraud Database.

Far from being proof of organized, large-scale vote-by-mail fraud, the Heritage database presents misleading and incomplete information that overstates the number of alleged fraud instances and includes cases where no crime was committed, an investigation by USA TODAY, Columbia Journalism Investigations and the PBS series "Frontline" found.

Although the list has been used to warn against a major threat of fraud, a deep look at the cases in the list shows that the vast majority put just a few votes at stake.

Fox News host Sean Hannity has repeatedly touted the Heritage Foundation's database of election fraud cases.
Fox News host Sean Hannity has repeatedly touted the Heritage Foundation's database of election fraud cases.

The database is the result of a years-long passion project by Hans von Spakovsky, a former member of the U.S. Department of Justice during the George W. Bush administration and a senior legal fellow with the Heritage Foundation, a conservative think tank. The entire Election Fraud Database contains 1,298 entries of what the think tank describes as “proven instances of voter fraud.” It has been amplified by conservative media stars and was submitted to the White House document archives as part of a failed effort to prove that voter fraud ran rampant during the 2016 election.

But the Blakes' address violation is typical of the kind of absentee ballot cases in the database. It appears along with widows and widowers who voted for a deceased loved one, voters confused by recent changes to the law and people never convicted of a crime.

The Heritage database does not include a single example of a concerted effort to use absentee ballot fraud to steal a major election, much less a presidential election, as President Donald Trump has suggested could happen this year. Though Trump has repeatedly claimed that absentee ballot fraud is widespread, only 207 of the entries in the Heritage database are listed under the fraudulent absentee ballot category. Not only is that a small slice of the overall Heritage database, it represents an even smaller portion of the number of local, state and national elections held since 1979, which is as far back as the database goes.

To examine the facts behind the rhetoric, reporters looked at each case in Heritage's online category of "Fraudulent use of absentee ballots,” comparing them with state investigations, court documents and news clips. Roughly one in 10 cases involves a civil penalty and no criminal charge. Some of the cases, such as the one involving the Blakes, do not match the online definition of absentee fraud as stated by the Heritage Foundation itself. Four cases did not involve absentee ballots at all, including a 1996 murder-for-hire case that included a person persuaded to illegally vote using a wrong address.

A man drops off his ballot during early voting Oct. 19 in Athens, Ga. A review of the Heritage Foundation's voter fraud database shows the issue of fraud is not as pervasive as some contend.
A man drops off his ballot during early voting Oct. 19 in Athens, Ga. A review of the Heritage Foundation's voter fraud database shows the issue of fraud is not as pervasive as some contend.

In recent months, von Spakovsky has cited the database to warn about the dangers of voting by mail, including during podcast interviews with U.S. Rep. Dan Crenshaw and former U.S. House Speaker Newt Gingrich.

In a written response for this story, von Spakovsky — the manager of the Heritage Foundation's Election Law Reform Initiative — called the database “factual, backed up by proof of convictions or findings by courts or government bodies in the form of reports from reputable news sources and/or court records."

He acknowledges the database is elastic enough to pull in civil cases, as well as criminal cases closed with no conviction. "Some suffered civil sanctions. Others suffered administrative rebukes," von Spakovsky said. In the case of criminal convictions, the database “does not discriminate between serious and minor cases." Charges listed in the description "add the necessary context," he wrote.

Even with such a broad definition, the Brennan Center for Justice in its 2017 examination of the full database found scant evidence supporting claims of significant, proven fraud. It did conclude the cases added up to "a molecular fraction" of votes cast nationwide. Von Spakovsky has countered that the database is a sampling of cases that have publicly surfaced.

"We simply report cases of which we become aware," he said.

But if the Heritage database is a sample, it points to a larger universe of cases that are just as underwhelming.

“It illustrates that almost all of the voting fraud allegations tend to be small scale, individual acts that are not calculated to change election outcomes," said Rick Hasen, election law author and professor of law and political science at the University of California, Irvine.

To be sure, there are exceptions. In North Carolina, a Republican political consultant was indicted and the results of a 2018 congressional race overturned based on an absentee ballot operation.

“But by and large the allegations are penny ante," Hasen said. "Some are not crimes at all.”

Relatively small number of votes at stake

Following unsubstantiated claims that “millions and millions” of fraudulent votes cast in the 2016 election had cost him the popular vote, Trump in 2017 created the Presidential Advisory Commission on Election Integrity to investigate stories of voter fraud.

Joining the panel was von Spakovsky, whose appointment was considered controversial. In an email obtained by the Campaign Legal Center, he urged that Democrats should be barred from the task force, arguing they would obstruct the panel’s work. He also wrote, of moderate Republicans: "There aren't any that know anything about this or who have paid attention to the issue over the years." He submitted the Heritage database almost immediately into the commission’s official documents.

The task force disbanded seven months after its first meeting with no report substantiating fraud. The White House blamed the potential cost of lawsuits and uncooperative states for the failure to produce evidence of widespread voter fraud.

Then-Kansas Secretary of State Kris Kobach met with Donald Trump after the presidential election to propose an investigation into voter fraud. Trump established a commission to investigate but ultimately disbanded it without any substantiated findings of widespread voter fraud.
Then-Kansas Secretary of State Kris Kobach met with Donald Trump after the presidential election to propose an investigation into voter fraud. Trump established a commission to investigate but ultimately disbanded it without any substantiated findings of widespread voter fraud.

A review of the absentee cases in the Heritage Foundation database helps explain why the panel came up short, and why such fraud is not a reasonable threat to undermine the 2020 general election.

In multiple instances, only one or two votes were involved per case. In other cases, no fraudulent votes were involved but they are still included in the database because people ran afoul of rules on helping others fill out ballots or ballot requests. For example, a nursing home worker was civilly fined $100 because she did not sign her name and address as an "assistor" on ballots she helped four elderly patients fill out. In another case, a mother was fined $200 because she signed her sons' requests for absentee ballots.

Events in the database also can be older than they seem because Heritage frequently categorizes entries by dates of an indictment, report or conviction, which may come years after the fraud. Using the year of the incident, 137 of 207 cases occurred before 2012.

Working in bipartisan pairs, canvassers process mail-in ballots Oct. 7, 2020, in a warehouse at the Anne Arundel County Board of Elections headquarters in Glen Burnie, Md.
Working in bipartisan pairs, canvassers process mail-in ballots Oct. 7, 2020, in a warehouse at the Anne Arundel County Board of Elections headquarters in Glen Burnie, Md.

Overall, the total number of absentee cases in the Heritage Foundation database is 153, with 207 entries in the category because multiple people are sometimes listed for the same case. Of those cases, 39 of them — involving 66 people — represent cases in which there seemed to be an organized attempt to tip an election, based on reporting and the group’s own description.

Further, the database describes “cases,” not individuals charged. However, the total number of cases became inflated after Heritage began counting every person involved in a criminal ring as a separate case.

“Each individual is a separate case and involved different … acts of voter fraud,” even if the parties conspired, von Spakovsky said. The Heritage Foundation may reconsider how groups of defendants are counted, but if anything, he said, the number of cases is undercounted, not overcounted.

But the details of the cases compiled in the database undermine the claim that voter fraud is a threat to election integrity.

In Seattle, an older widow and a widower appeared in court the same day, having voted for their recently deceased spouses — two of 15 in the database where an individual cast the ballot of a recently deceased parent, wife or husband.

"The motivation in these cases was not to throw an election," the prosecutor of the Seattle case told the Seattle Post-Intelligencer. "The defendants are good and honorable people."

Lorraine Minnite, a Rutgers University political science professor who has written extensively on voter behavior, said of the Heritage Foundation database: “They slapped it together.

“They must have thought people would not think about it in a deep way,” Minnite said. “They can just slam it on the desk, say some number. The context and accuracy goes out the window."

Each ballot at Maryland's Anne Arundel County Board of Elections headquarters goes through a five-step process before being sliced open and tabulated.
Each ballot at Maryland's Anne Arundel County Board of Elections headquarters goes through a five-step process before being sliced open and tabulated.

Andrea “Andy” Bierstedt was accused of taking one ballot belonging to another voter to the post office in a 2010 Texas sheriff's race. Bierstedt said prosecutors allowed her to donate $3,500 to the county food bank as part of a plea. She wrote the check and she has no conviction. Yet she's in the database.

“This database is really saying that I'm guilty when even the courts say I'm not guilty," said Bierstedt, who did not know her name was on a compilation of voter fraud cases. “It's slander.”

Others captured in the database stumbled on changes in law. Providing assistance, such as the delivery of an absentee ballot, had been legal in 2003 in Texas, and in 2004, that's what Hardeman County Commission candidate Johnny Akers did. "I didn't understand you couldn't mail some little old lady's ballot,” Akers told the Wichita Falls Times Record News.

After Brandon Dean won the Brighton, Alabama, 2016 mayor's race, a losing candidate sued over absentee ballots.

"This isn't about voting fraud,” the judge in the civil trial said. Ballots rejected by the judge for apparent voter mistakes triggered a runoff, and Dean declined to run.

Dean’s case, however, appears in the Heritage database.

Percy Gill's reelection to the Wetumpka, Alabama, Town Council the same year also prompted a rival to sue, and a civil judge also overturned the election results because of defective absentee ballots. Gill died last year.

"I don't know why they put him on the [Heritage] database," said his friend Michael Jackson, the district attorney for Alabama's 4th Judicial District. "He was a very honest man, an upstanding official."

'It wasn’t anything big to begin with'

The Heritage voter fraud database correctly notes that Miguel Hernandez was arrested as part of a larger voting fraud investigation in the Dallas area.

Hernandez, who pleaded guilty to improperly returning a marked ballot in a 2017 city council election, had knocked on voters’ doors, volunteered to request absentee ballots on their behalf, signed the requests under a forged name and then collected ballots for mailing.

Absentee ballots wait to be counted at the Albany County Board of Elections in Albany, N.Y., on June 30, 2020.
Absentee ballots wait to be counted at the Albany County Board of Elections in Albany, N.Y., on June 30, 2020.

But Heritage did not include the fact that the investigation went nowhere. Voters told prosecutors their mailed votes were accurately recorded.

“It did not materialize into anything bigger simply because it wasn’t anything big to begin with," said Andy Chatham, a former Dallas County assistant district attorney who helped prosecute Hernandez. "This was not a voter fraud case."

Yet according to the Heritage Foundation’s fraud database, Hernandez’s scheme involved up to 700 ballots.

“Absolutely hilarious,” said Bruce Anton, Hernandez's defense attorney. “There is no indication that anything like that was ever, ever considered.”

The legend of Hernandez’s activities grew even more when U.S. Attorney General William Barr recently held Hernandez out as an example of fraud, boosting the number of ballots. “We indicted someone in Texas, 1,700 ballots collected, he — from people who could vote, he made them out and voted for the person he wanted to.”

The Department of Justice had not indicted Hernandez. A spokeswoman told reporters Barr had been given inaccurate information.

Fraud exists, and the system to catch it works

While fewer and farther between, legitimate absentee fraud is also reflected in the database. Ben Cooper and 13 other individuals faced 243 felony charges in 2006 in what was described as Virginia's worst election fraud in half a century. The mayor of the tiny town of Appalachia, Cooper and his associates stole absentee ballots and bribed voters with booze, cigarettes and pork rinds so that they could repeatedly vote for themselves. Cooper pleaded guilty and served two years in jail.

But the case is an example of just how difficult it is to organize and execute absentee fraud on a scale significant enough to swing an election while also avoiding detection. Heritage's compilation of known absentee cases shows the schemes repeatedly occurred in local races, frequently in smaller towns where political infighting can be fierce and fraudsters easily identified. Just one voter who told her story to The Roanoke Times unraveled Cooper's ring.

The idea that absentee fraud frequently involves few votes and is easily caught is "laughable," von Spakovsky said. He cited as an example the 1997 Miami mayoral race, which was riddled with absentee fraud.

However, that fraud scheme also collapsed quickly: The election took place in November, the Miami Herald began exposing the fraud in December, a civil trial started in February and a judge overturned the election in March.

“There have been some ham-handed attempts in small scale fraud, but I would be very surprised to see large scale efforts that go undetected," Hasen said. "It is very hard to fly under the radar.”

The Heritage database also illustrates an aggressive system capable of catching and harshly punishing violators. When a Washington state woman registered her dog and put his paw print on an absentee ballot, she risked felony charges. Forging his ex-wife's name on her ballot earned the former head of the Colorado Republican Party four years on probation.

“The mechanisms to safeguard the integrity of the vote are in place in every jurisdiction in the country,” said Chatham, the former Texas prosecutor. “Anybody who says differently hasn’t done the research that I have. They haven’t done the research at all and they just want to believe in conspiracy theories.”

Contributing: USA TODAY Network reporters Zac Anderson, Joey Garrison, Jimmie Gates, Frank Gluck, Eric Litke, Brian Lyman, Will Peebles and Katie Sobko

This story is part of an ongoing investigation by Columbia Journalism Investigations, the PBS series "Frontline" and USA TODAY Network reporters that examines allegations of voter disenfranchisement and how the pandemic could impact turnout. It includes the film "Whose Vote Counts," premiering on PBS and online Oct. 20 at 10 p.m. EST/9 p.m. CST.

This article originally appeared on USA TODAY: Trump's absentee ballot fraud claims not supported by evidence