President Donald Trump on Wednesday made false accusations about mail-in voting in Michigan and Nevada, continuing his unfounded attacks on absentee balloting.
He initially mischaracterized the Michigan secretary of state's actions to expand voting by mail during the coronavirus pandemic, falsely claimed such actions were illegal, and repeated his false assertion that there is rampant fraud in mail balloting. He also threatened to withhold money from the states - which itself may be unconstitutional or illegal.
Here's an assessment of his claims.
Is Michigan mailing absentee ballots to 7.7 million voters?
No. Trump's first tweet on the issue, on Wednesday morning, inaccurately said that absentee ballots were being mailed to 7.7 million people. But Michigan's secretary of state, Jocelyn Benson, a Democrat, is sending out applications for absentee ballots for the August primary and the November general election. To receive an actual mail-in ballot, a voter would have to fill out the application form and mail it to a local election office to be verified.
In Nevada, the Republican secretary of state declared the June primary to be an all-mail election, and ballots are being sent to voters across the state.
Is it illegal to send voters applications for absentee ballots in Michigan?
No. Michigan voters approved a constitutional amendment allowing no-excuse voting by mail in 2018 - meaning any voter can now apply for an absentee ballot for any reason - and this is the first election cycle with the policy in place. Anyone in the state can legally print a ballot application and send it to someone; the form is available online.
In the state's March 10 presidential primary, half of the 2.3 million people who voted used absentee ballots. And in local elections on May 5, 99% of voters used absentee ballots, increasing turnout to 25% from an average of 12% in the last nine May elections.
States received election-assistance funding from the Coronavirus Aid, Relief and Economic Security Act, known as the CARES Act. In sending the absentee ballot applications, Benson said she had already spent $4.5 million of the $11.2 million in federal funds allocated to Michigan. She has said that she has the authority to use the money as she deems necessary.
Disputing that authority, a Trump campaign official cited a 2008 Michigan case in which a judge said local clerks could not send absentee ballot applications to a limited universe of voters, but that was before the 2018 amendment. Benson's application for funds under the CARES Act specifically cited efforts to expand voting by mail, and her spokesman, Jake Rollow, said claims she lacked legal authority to send ballot applications were "false."
Is voting by mail more susceptible to voter fraud?
Numerous studies have shown that all forms of voting fraud are very rare in the United States. A panel that Trump established to investigate election corruption was disbanded in 2018 after it found no real evidence of fraud.
Experts have said that voting by mail is less secure than voting in person, but it is still extremely rare to see broad cases of voter fraud.
In Washington, a state that votes almost entirely by mail, a study conducted by the Republican secretary of state found that 142 potential cases of improper voting in the 2018 election were referred to county sheriffs and prosecutors for legal action, out of more than 3.1 million ballots cast, which amounted to roughly 0.004% of the electorate.
One of the most prominent recent cases of fraud came in North Carolina's 9th Congressional District, where a political operative was charged with fraudulently collecting and submitting absentee ballots in an effort to manipulate the election results in favor of the Republican candidate. But such broad schemes are likely to be detected, as this one was, experts say; the district held a do-over election.
Five states - Colorado, Hawaii, Oregon, Utah and Washington - conduct their elections almost entirely by mail, automatically sending all registered voters a ballot. Twenty-nine other states and Washington, D.C., allow for no-excuse absentee voting, meaning anyone can request an absentee ballot for any reason. Trump voted by mail in the last election.
Trump's misleading claims are "all from a mail-in voter himself in service of a conspiracy theory about the purported relationship between absentee voting and voter fraud - a relationship that has never actually been substantiated in anything other than marginal cases," said Stephen Vladeck, a professor at the University of Texas School of Law.
Can the president withhold federal funding over absentee voting?
Unlikely. Much of the money is already out the door, and legal experts questioned whether Trump even had the authority to block the funding.
Since the 2016 election, Congress has disbursed at least $380 million to states for election security and upgrades, and it appropriated another $425 million in the latest budget deal. The CARES Act provided another $400 million, and the Election Assistance Commission said in early April that it would expedite distribution of that funding.
Legislation for the 2020 fiscal year and the CARES Act "make very clear the funds can be used for vote-by-mail," said Myrna Pérez, director of the voting rights and elections program at the Brennan Center for Justice. "For a very long time, it had bipartisan support."
Michigan's and Nevada's actions "certainly seem consistent with statutory intent, making it difficult for the president to claim that he could legally not spend the funds," said Roy Meyers, a professor of political science at the University of Maryland, Baltimore County. "And evidence that the president was withholding funds out of spite or a desire for vengeance regarding an issue unrelated to the intended purpose of the funds would further weaken his legal case."
Vladeck said: "Not only are states well within their rights to take reasonable measures to distribute applications for absentee ballots, but withholding federal funding in retaliation for doing so is a violation of the Spending Clause, which doesn't allow the federal government to coerce states through such threats."
If Trump withheld money, Vladeck said, such action could also violate a federal criminal statute that "specifically bars using appropriations to interfere with individuals' right to vote."
The Impoundment Control Act of 1974, established after former President Richard M. Nixon refused to release congressionally appropriated funds to programs he opposed, requires the president to seek approval from Congress to withhold money. (The Government Accountability Office said in January that Trump violated this law when he froze security assistance to Ukraine.)
Even if Trump had the authority to block the funds, it may already be too late. Nearly all of the funding for the 2020 fiscal year, which ends in September, has been accounted for, noted Howard Gleckman of the Tax Policy Center, who called Trump's tweets "an empty threat."
Why the focus on Michigan and Nevada?
As Benson pointed out in a tweet, Michigan is not alone in its decision to distribute applications for mail-in ballots; states helmed by Republican governors and secretaries of state - like Iowa, Georgia, Nebraska and West Virginia - have also done so amid the pandemic.
But Michigan and Nevada are battleground states, the first of which Trump won by just 0.23% in 2016. Michigan and its Democratic governor in particular have become the object of presidential fascination, mentioned dozens of times by Trump on Twitter and in remarks since the coronavirus outbreak. Recent polls show that Trump is trailing former Vice President Joe Biden in the state.
Does mail balloting benefit Democrats over Republicans?
Numerous studies have found little evidence of partisan advantage for either side from expanding mail voting and no-excuse absentee balloting. Instead of favoring one side or the other, recent results have reflected the oscillating nature of elections.
A 2014 study in Colorado, which had just put in place a vote-by-mail system, found that Republicans outperformed their predicted turnout by a higher margin than Democrats. In the election that year, Sen. Cory Gardner, a Republican, beat the incumbent, Mark Udall
A 2016 study in Utah found that Democrats had gained a slight advantage over predicted turnout in counties that had switched to all-mail voting.
Two elections in the past two months saw a huge surge in voting by mail, and the partisan benefits were not consistent.
Though some voters stood in lines for hours to cast ballots in Wisconsin's Supreme Court race last month, more than 1 million people voted by mail. Jill Karofsky, the Democratic-backed candidate, won by 11 percentage points in an election that had been expected to be very close.
A special election last week in California's 25th Congressional District was conducted largely by mail. Mike Garcia, the Republican candidate, won by nearly 10 points, far from the razor-thin margin most had predicted.
This article originally appeared in The New York Times.
© 2020 The New York Times Company