The Unpersuasive Empiricism Regarding Universal Mail-in Voting Fraud

Ian Ayres

Ian Ayres & Pranjal Drall

President Trump has railed against states that send ballots automatically to all registered voters for months. In the recent presidential debate, he stated, “As far as the ballots are concerned, it's a disaster...a solicited ballot is OK but an unsolicited ballot is not...It's a rigged election.”

Currently, only nine states and the District of Columbia (home to 21 percent of the population) send ballots to all registered voters. Out of the remaining states, 34 states (56 percent) allow absentee voting upon request while seven states (22 percent) require voters to vote in person at a polling place unless they have an excuse (beyond COVID-19).  

A closer look at the jurisdictions that have ‘universal’ mail-in voting shows that 9 of the 10 have electorates that are so solidly in favor of one presidential candidate that it beggars belief that voting fraud could impact the outcome in these states. In these nine jurisdictions—Vermont, California, New Jersey, Colorado, Hawaii, Utah, Washington, Oregon and the District of Columbia—the leading candidate holds more than a 10 percent predicted vote share: 

According to FiveThirtyEight’s election modelling, Nevada is the only universal mail-in voting state that is up for grabs with Biden holding “only” a 6.2 percent lead in the weighted polling average.  But Nevada casts only 6 electoral votes and is estimated to have only a 3.5 percent chance of deciding the election, that is, of being pivotal to determining the winning candidate.

Nevada is the only universal mail-in voting state where massive voting fraud could have any possibility of altering the identity of the state winner and Nevada has so few electoral votes that contesting that state’s electors is unlikely to impact the identity of the electoral college winner. To be clear, when we say, “that massive voter has any possibility,” we are trying to give credence to Trumps concern. It is also important to note that universal mail-in voting has not been linked to any kind of voter fraud. However, even if we were to grant Trump the first part of this argument that unrequested mail ballots are more susceptible to fraud, any such fraud is unlikely to cause a material difference in the outcome of the election. Even if Pence refuses to accept Nevada’s electoral returns “on the grounds that the underlying vote count was generated in an illegitimate fashion,” Biden would still likely retain a majority of electoral college electors.

Although Trump has publicly mostly railed against these nine states, his campaign has filed multiple lawsuits in states that are expanding vote by mail including New Jersey, Nevada, North Carolina, Iowa, Pennsylvania, and Montana. The campaign also filed a motion against residents of the Navajo Nation in Arizona who are suing the state over a policy requiring ballots be received before 7pm on election day. These states are very important for the election. For instance, Pennsylvania, North Carolina, and Arizona cumulatively have a 36 percent chance of deciding the election. The Supreme Court also recently upheld South Carolina’s witness-signature requirement which signals how it may rule on future cases around state vote by mail mandates.

These lawsuits have already greatly hobbled Democrat plans to encourage mail-in voting. Officials are urging voters to vote-in person in key swing states as they are worried that mail-in votes might not be counted. This is not only bad news from a public health standpoint but also can lead to reduced voter turnout if voter’s fear their votes are not being counted.

We have reason to be concerned that these lawsuits may impact the election by making it harder for people to cast their votes in battle ground states. In contrast, President Trump’s rhetorical efforts to claim that any loss of his would be due to practice of ten jurisdictions to automatically mail ballots to all voters does not withstand scrutiny.