The Flaws In The O'Keefe “Voter Fraud” Scheme

Discredited fraud James O'Keefe's latest video attempts to prove how easy it is to steal an election without voter ID laws on the books, but actually demonstrates just how difficult it would be to pull off such a plot.

The video presents a compilation of clips from Tuesday's New Hampshire primary elections in which either O'Keefe or a confederate gives a poll worker the name of a recently deceased voter and is offered a ballot. The public policy issue the video actually shows is the need for voting records to be kept up to date in the months before an election. The deceased should not be on the rolls and election officials need to do a better job of keeping those lists clean. But since conservative elites (and donors) are far more interested in voter ID laws that have the effect of keeping Democratic voters from the polls, that's the tack that O'Keefe takes.

What O'Keefe instead suggests is that, because the state does not require voters to present photo identification at the polls, it is simple for individuals to pose as deceased voters, cast ballots in their names, and swing elections. As we've noted, there is little evidence that such schemes actually exist in the real world.

An actual attempt to carry out such a plot would run into the problem shared by all such schemes to steal elections through in-person voters, rather than in the vote counting phase: without knowing how many votes they need to steal to win, conspirators must engage in a very large effort.

As election experts noted when contacted about O'Keefe's video by TPM, actually pulling off a scheme to swing an election through these methods would be extremely complex, a massive undertaking whose size could quickly lead to its discovery:

Election law expert Rick Hasen, who writes the Election Law Blog, joked in an email to TPM that O'Keefe's team should “next show how easy it is to rob a bank with a plastic gun.”

“Who in their right mind would risk a felony conviction for this? And who would be able to do this in large enough numbers to (1) affect the outcome of the election and (2) remain undetected?” Hasen wrote.

Other election experts agreed that the video doesn't change the substance of the debate over whether the minimal threat of in-person voter fraud is worth the impact that such laws can have on minority and poor voters.

“The fact that activists can engage in a stunt is not a reason for reform,” Samuel Issacharoff, a professor of constitutional law at New York University Law School, told TPM. “It means nothing. Why would anybody want to do this? It proves that they don't update their dead voter information as quickly as they might, but so what? To pull this off on a large scale, you'd need coordination, and presumably somebody would have heard about it.”

The bigger the election, the more precincts and deceased voters would be involved and the more conspirators would be needed. Smaller elections mean fewer votes would need to be stolen, but they also mean that there are fewer recently deceased individuals to pose as.

In an election involving a larger number of voters, numerous conspirators would be needed, all willing to risk facing election fraud charges. And indeed, even operating a two-person operation that only seems to have targeted a dozen polling locations, O'Keefe or his associate was caught in the act. The video includes eleven clips in which a conservative videographer is offered a ballot. In one other case, the right-wing operative in question was halted by a poll worker who knew the deceased. Those odds don't bode well for the sort of wide-scale operation such an effort would require if the purpose had been to actually steal the New Hampshire primary.

Moreover, voter ID requirements might present a hindrance to such an effort, but they would in no way stop it altogether. The conspirators would need to obtain fake identification, but if they were willing to devote this level of time and resources to stealing an election and take on such a high level of risk, there is no reason to believe they wouldn't they take that step.