MTPR

UM Law Professor Talks Recent Voter Fraud Allegations

Sep 20, 2017

Montana's Republican Secretary of State Corey Stapleton and Democratic lawmakers continued their spat last week over allegations of voter fraud in statewide elections. Stapleton has made at least two claims of voter fraud in the special U.S. congressional election this spring. He's also concerned about the number of illegal votes in that election.

County election officials have criticized the secretary of state for his talk, saying it could lead to lower voter confidence in the state's election system. But the secretary of state says Montana needs election reform because even if fractions of a percent of  the total votes are being deemed illegal, it's too much.

Anthony Johnstone spoke with MTPR Capitol Reporter Corin Cates-Carney to discuss this issue.

Johnstone has worked as the solicitor for the State of Montana as well as held the position of assistant attorney general where he argued cases on behalf of Republican Secretary of State Brad Johnson. He now teaches constitutional law and election law at the University of Montana.

Corin Cates-Carney: Anthony Johnstone, thanks for being here.

Anthony Johnstone: Happy to be here.

CCC: Since shortly after the special election last May there's been some debate between the secretary of state's office, county election officials, and lawmakers over allegations of voter fraud in the state's election system. I'd like to start by playing a clip of the secretary of state Corey Stapleton testifying before a legislative committee back in July:

"We all have to take a real hard look. We've never had voter fraud in Montana this century. I mean nobody. And ask yourself if we had no DUIs, if we had no you know shoplifting, if we had no sexual assaults. Would we really say that we don't have those things, or would we say we don't have voter fraud because we've never pursued it or we don't understand. In a special election for example over 300 signatures were illegal statewide."

CCC: When some people have heard that, they have said that that is the secretary of state claiming voter fraud in Montana. When you hear that statement, do you hear claims of voter fraud?

AJ: It sounds like in those remarks the secretary of state is conflating voter fraud with illegal votes and there's a big difference there. Illegal votes, votes that aren't counted, usually occur by mistake. Mistake 

"It is not the way our Constitution addresses our right to vote to assume that when someone makes a mistake that they're breaking the law." - Anthony Johnstone, UM Law Professor

either on the election administrators’ side in terms of maintaining the records, but often  times sometimes an honest mistake of a voter whose signature might have changed over time because they're elderly or because they've recently moved. There's a big difference between a non-compliant or invalid or technically illegal signature, which itself is not a crime, and voter fraud, which is an attempt to manipulate the outcome of an election through criminal means. It is not the way our Constitution addresses our right to vote to assume that when someone makes a mistake that they're breaking the law.

CCC: Are you seeing that clear distinction in language being carried out by the secretary of state and election officials?

AJ: I think we could do better in ensuring that we're not scaring away voters and we're staying true to our constitutional value of making sure that our elections are free and open to everyone and that we presume that Montana's citizens are honest folks.

CCC: If this kind of talk about fraudulent and illegal continues how do you see it having an impact on elections and Montanan's right to vote?

Anthony Johnstone, Associate Professor of Law
Credit UM Law School

AJ: It is unfortunately in the bag of both parties' dirty tricks during elections to throw around freely this idea of voter fraud and prosecution, to try to scare voters away from the polling places. And both parties do it. And it's really important that officials in charge who have responsibility for protecting our right to vote aren't playing any of those games. And again, I don't think any of those games are being played here. But we need to consider the context. We have to consider the backdrop that President Trump has made completely unproven allegations of millions of illegal votes in the United States and has appointed an unprecedented partisan commission. They are looking at election reform and throwing around these confusing issues between trying to have a better voter registration system and voter fraud. And I think we have to take these discussions here in Montana within that national context that sometimes unfortunately people use the specter of voter fraud to deny people their right to vote.

CCC: Has there always been to some degree an element of political gamesmanship in the voting process - who is going to vote, how can they vote, when can they register to vote - and how were you seeing that gamesmanship, if it's there, trending. And is this debate we're having now a part of that?

AJ: I think probably since the contested election of 2000 Bush v. Gore we have seen more tension focused on this. I've been worried to see the debates around voter fraud and to see the disagreements between the new secretary of state and some elections officials, although I'm encouraged that those will get on a more productive track and will focus on the sensible reforms that we can all agree on.

CCC: Montana Secretary of State Cory Stapleton's says in the last election, out of the more than 380,000 votes, there were more than 800 ballots that people forgot to put their name on. Another 600 people mailed in too late. And another 360 that were illegal. And the secretary of state says these numbers are concerning and it is cause to look for maybe reform in the system. What should we understand as normal here in these numbers? Is it normal for these amount of ballots to be deemed illegal and not counted? And is this actually a cause for concern as the secretary of state is saying or is this more just how elections are run and much ado about nothing?

AJ: I think these numbers are within the range of free and open elections that our Constitution requires. There are going to be mistakes. And I think it is important for the secretary of state, who's the chief elections officer of the state, to help the counties who have the responsibility for actually running the elections do a better job. I think as long as we're looking at these numbers and saying those are in the vast majority of cases Montanans who have had trouble keeping up with the paperwork of voter registration or who have had trouble understanding some of the technicalities of the process that have been denied their right to vote and that in reforms we need to find ways to make that easier. I think those are all too the good. And I see in Secretary Stapleton's most recent remarks that he appears to be headed in that direction. It's worth noting that we do have two different organizations that are in charge of elections in Montana. The secretary of state is in charge of maintaining uniformity in the election law. But it is the counties who are responsible for actually administering the elections and that shared power can sometimes result in some tension.

CCC: What's the historical context for there to be some disagreement between those two agencies that are trying to work together to run elections, and how cooperatively and in agreement has that work been in the past?

AJ: There's always a little bit of tension and I think part of what we're seeing here is a little bit of frustration around the mail voting question around the special election and the failure of that in the legislature. And then I think part of it is just some of the learning curve involved in state officials. It takes a little time for the secretary of state's office to get caught up on all the specifics of election administration, where the county clerks and recorders are on the ground and really are the undisputed experts in this field. And you know I think we can hope to see that those tensions are reduced going forward.

CCC: And as these conversations progress and we get closer to the next election, what should voters keep in mind as they hear these debates about potential fraud and illegal votes among officials charged with running state elections?

AJ: I think voters need to keep in mind that their right to vote is their most important right as citizens of Montana. And we should expect our public officials from the polling place judge all the way up to the secretary of state and we can hope perhaps up to Congress and the president that they are on the voter's side in terms of protecting their right to vote and not engaging in baseless speculation or fraud mongering or other sorts of attacks on the right to vote. And then I hope there is room for sensible reforms and I hope voters should keep an eye out for those and should engage in the process and find ways to ensure our Constitution's promise that elections shall be free and open to everyone.