Last Thursday, President Trump sued the state of Nevada again, alleging certain improprieties by the Clark County Registrar of Voters. A First Judicial District Judge denied President Trump’s request for a temporary restraining order to stop the registrar from processing any more mail ballots until various conditions were met. But the court did schedule an evidentiary hearing on the matter that was held Wednesday. I have no doubt that the specifics of the dispute itself will be decided in a timely and orderly fashion, but I am skeptical that any of the allegations justify the relief requested.
Tuesday night, Republicans and President Trump filed another lawsuit, this time in Clark County. The claims in the two lawsuits appear related. Both take issue with the registrar’s performance under the law. And both express worry about the counting and verification process for mail ballots.
Whatever the merits (or not) of President Trump’s lawsuits, their timing and substance do provide a moment of clarity and, I hope, honest self-assessment. After months or more of broad and baseless attacks on the integrity of Nevada’s elections, President Trump’s foggy allegations now take shape. To wit: through theft, intimidation, or deceit, fraudsters could be hijacking Clark County (and only Clark County) mail ballots to cast votes for former Vice President Biden and other Democrats. The only legal safeguard against such fraud is the signature match election officials are required to do. But because the Clark County Registrar is allegedly not properly matching signatures, there is no guard against fraud. Without these fraud protections, fraud becomes more likely. Or so President Trump claims.
There are no specific accusations or corroboration of voter fraud yet, just the belief that possible fraud means probable fraud. But Nevadans have been voting for weeks; assumptions and suspicion will not cut it any longer. We have actual data to look at and evidence to explore. More than 50 percent of the likely vote is already in; abnormalities indicative of criminal activity can no longer hide. The people running presidential campaigns are not stupid. They know who has voted, almost in real time, and with surgical precision. And the mosaic created by our collective voting patterns tells a story long before the final results are tallied.
So with lawsuits pending in Carson City and Clark County, an election less than a week away, and testable legal claims now on the table, is there any indication at all of voter fraud — lax signature requirements or not?
No. There is not.
Before diving into the proof, though, we must look at the basic assumption propping up the entire theory of voter fraud. Simply put, many believe that if people can commit voting crimes without real fear of detection or punishment, they will commit those crimes. Politics and elections are so important only the threat of prison holds back torrents of electoral shenanigans.
There is a certain amount of superficial logic behind such thinking. Politics and elections are important. Real benefits and burdens are at stake, and we don’t rely on honor systems and self-governance in many aspects of life. But beyond a basic level of distrust in human nature, the assumptions propelling vote-fraud theory into vote-fraud concern quickly sputter. The amount of actual fraud necessary to make fraud appealing (i.e. winning elections) automatically and exponentially increases the labor required and the risks involved. If you are going to commit a felony, you might as well make it count. Small acts of fraud might not be hard to pull off, but they are almost certainly a worthless endeavor. Any one instance of voting fraud won’t matter unless matched by thousands of other instances of voting fraud, too. Shoplifting may not be that difficult either, but at least you get a tangible and immediate bounty that only you have to know about and enjoy.
Consider the math: if 1.4 million Nevadans vote in the 2020 presidential election, it would take 14,000 net fraudulent votes to alter the race by just 1 percent of the total vote. That means 14,000 fraudulent votes that your candidate would not have received. (Stealing votes from people already voting your way adds no value.)
Pilfering 14,000 votes means creating 14,000 victims. That will make quite a bit of noise. There are no economies of scale here. You can only add to your illegal tally one vote and one person at a time. Do we honestly believe that criminal masterminds think thousands of acts of fraud involving thousands of victims in order to maybe sway an election that might result in rewards down the line are worth it? As Willie Sutton said, people rob banks because that is where the money is. Robbing a maximum-security bank for $1 billion is one thing; robbing a million banks with even limited security for $100 a pop is something different altogether.
What if the goal is lower? 100s of fraudulent ballots, not 14,000? An easier task, no doubt. But to what end? To change an Assembly race? A municipal contest? At least fraud in the aid of a future president brings with it the nuclear codes. And lower-level fraudsters would have to target a narrower pool of victims. To state the obvious, you need fewer votes to sway smaller contests because there are fewer voters. 1 percent of an entire state or district is still 1 percent of voters. What is rowdier, targeting entire neighborhoods or the four corners of the state?
Of course, just because vote fraud is hard in practice or makes little sense does not mean it never happens. It does. But if and when it occurs, I have seen no evidence that it is anything more than a miniscule, irrelevant subpart of otherwise clean elections generally representing the will of the voters.
That is enough about assumptions. What does 2020 data actually say?
If there was something off about this election, we would see signs of it by now. Has there been an uptick in people alleging that someone swiped their vote? Has there been any abnormal increase in voting by inactive voters or other normally non-participating voters? If so, why conceal the evidence? Why not add it to the lawsuits?
From where I stand, 2020’s raw numbers do not look all that different than the past two elections. Democrats outnumber Republicans in Nevada, and in 2016 and 2018, Democratic voters cast more votes during early voting than did Republicans. The same thing is happening now, albeit with Democrats casting those ballots by mail and not in person. By historical standards, 2020 is proceeding in line with past elections. The percentages are interesting too, as it looks like Democrats are turning out a higher percentage of their regular voters than are Republicans, which is not something you would expect to see if Democrats were involved in fraud.
Nevertheless, history alone need not be our sole guide. President Trump has zeroed in on Clark County as the source of all fraud, so surely it should stand out, numbers wise, from the rest of its municipal piers. And yet there is nothing about Clark’s results showing it out of whack with the rest of the state. Democrats are voting in large numbers by mail in every county. In fact, Clark voters are underperforming in relation to the rest of the state. The Clark County registrar may be rejecting a lower percentage of ballots based on signatures than most other counties, but the actual results support no book-cooking claims. If something was rotten in Clark, it would not share turnout statistics with fellow Nevada counties.
In the end, I realize this is 2020, a year in which good news has no place. But it looks like our electoral system is working just fine even in the midst of a pandemic. In normal times the lack of any evidence of election wrongdoing should be cause to celebrate. Despite more and more people believing that the apocalypse hinges on the results of each election, by and large we follow the rules. That says great things about us and our officials.
I completely understand the need to stand up for election integrity. Sometimes you need to let the other team and the referees know you are watching. And we have courts for a reason. But overheated rhetoric about our voting imposes severe and permanent costs on us all. The levy better be worth it, and the proof up to the task. Sadly, we have now reached the point that no matter what happens in court or on Election Day, increasing numbers of Nevadans now believe they cannot trust their elections. These scars last. So you had better be ready to make your case with more than assumption, loose talk, and campaign banter. Absent an ironclad factual foundation of fraud, sowing disbelief in the process as a whole is simply too high a price to pay for any one candidate or election.
Daniel H. Stewart is a fifth-generation Nevadan and a partner with Hutchison & Steffen. He was Gov. Brian Sandoval’s general counsel and has represented various GOP elected officials and groups. He recently switched his registration to nonpartisan.