The midterm election is in our rearview mirror, but it continues making news throughout the country. As of November 19th (almost two weeks after the election,) four races for seats in the House were still being counted, but coverage of those races were drown out by the gubernatorial recounts in Florida and Georgia.
The Georgia race has been irrevocably tarnished by credible claims of voter suppression and interference from former Secretary of State (and now Governor-Elect) Brian Kemp. The Florida gubernatorial recount turned out to be a hapless mixture of incompetent and typical unfounded accusations of voter fraud from President Trump.
While not a single incident of voter fraud was discovered in Florida, these accusations revealed a need to clarify what voter fraud is and how it might be handled in future elections. The first question to answer is: if you’re accused of voter fraud, will you be charged at the state or federal level, and how is this decided?
What Is Voter Fraud?
There are many different actions that may be considered voter fraud, but they all have one thing in common: they are intentionally done in order to sway an election.
There have been few documented cases of widespread voter fraud in the country in recent decades, but it is not uncommon to hear of individuals who have been arrested for some sort of voter fraud. Like, for example, the former GOP chairman in Colorado who was arrested for voter fraud after he forged his ex-wife’s signature on an absentee ballot.
Other acts of voter fraud include submitting multiple ballots or attempting to impersonate someone else at the polls. Although many states (including Texas) have implemented strict photo ID laws to prevent voter fraud, this crime rarely takes place.
Quite simply, there is no credible evidence of people voting, returning to their cars to change their clothing, and voting a second time as suggested by our president. This would be classic voter fraud but it did not. Most voter fraud incidents come from mail-in ballots, as was the case with the Colorado case that was mentioned earlier.
Voter fraud is different than voter incompetence. Negligence or unintentional mistakes can certainly affect an election’s outcome, but this is not voter fraud. The Florida gubernatorial race, for example, contains plenty of examples of voter incompetence, such as improperly filing ballots or accidentally destroying ballots.
What Are the Penalties for Voter Fraud in Texas?
Since there are many different types of voter fraud in Texas, defendants may face misdemeanor or felony charges. The difference may lie in whether the defendant successfully completed the crime or has been convicted before.
The following crimes are misdemeanors in the state of Texas:
- Attempting to unlawfully remove a ballot from a ballot box
- Refusing to let an employee take time off work in order to vote
- Threatening or subjecting penalties against an employee if they do leave work to vote
- Forging information or casting a vote under false pretenses (the official definition of election fraud)
The following crimes are felonies in the state of Texas:
- Retaliating against a voter
- Unlawfully removing a ballot from a ballot box
- Unlawfully buying or selling balloting materials
- Committing election fraud a second time or with aggravating factors
When Can Texas Voter Fraud Be A Federal Offense?
“Voter fraud” has been a favorite Trump accusation since he announced his candidacy, so it seems like a good time to know when this type of crime is actually taken on by the federal government.
The answer is similar to when other state crimes can become federal crimes: when they concern the federal government.
According to the Department of Justice, voter fraud becomes a federal concern when:
- “a federal candidate’s name is on the ballot”
- “fraud involves the necessary participation of an election official acting ‘under color of law.’”
- the fraud is connected to the voter registration process
Federal candidates include anyone who works in the executive branch (as opposed to the legislative or judicial branches). Senate candidates or gubernatorial candidates are not considered federal candidates. The President of the United States, as head of the executive branch, is a federal official.
If You Are Arrested for Voter Fraud
Voter fraud can go “either way” as a misdemeanor or felony – or as a federal or state crime. If you have been arrested for voter fraud, it is important to consult with a lawyer and see if you are at risk of going to federal court. If you are, reach out to a Texas criminal attorneywho has a successful track record handling federal cases.