Election Law Expert: Rigged Election 'Extraordinarily Unlikely' | KERA News

Election Law Expert: Rigged Election 'Extraordinarily Unlikely'

Oct 18, 2016
Originally published on October 18, 2016 8:36 am

Claims by one side — so far without evidence — that the coming presidential election will somehow be "rigged" are being echoed at campaign rallies and in one new poll of voters.

Donald Trump has questioned the integrity of the election, and there's been talk of the race for the Democratic nomination having been rigged at the expense of candidate Bernie Sanders.

Historically, says Edward Foley, an election law expert from Ohio State University's Moritz College of Law, a rigged election has meant tampering with or stuffing ballot boxes or buying votes. And he's not convinced that could happen on Nov. 8.

"I think it's extraordinarily unlikely that we're going to have a rigged election because of the fact that our system is so decentralized," he tells Morning Edition's Renee Montagne.


Interview Highlights

What constitutes a rigged election?

I like to define the rigging of an election as the systematic manipulation of the voting process or the counting of ballots. It's intended to distort the outcome of the election, and it's a systematic effort to do that. ...

It's trying to get a different count at the end of the election from what the voters actually wanted.

Is it possible that this election could be rigged?

That state would have had to have been targeted ahead of time for rigging, and the attempt to rig it would have to go undetected. That's a lot to happen systematically and under the radar screen. The new phenomenon is the risk of a cyberattack, and again, I think the risk of that is very low — as long as the voting machines are not hooked up to the Internet, and most states — as I understand it — most states do not hook up their vote-tabulating equipment to the Internet.

I do think the rhetoric [of this election] has been irresponsible, some of it, and overheated. I understand political campaigns are rough and tumble and so forth, but I think it is important to be careful with words. And so I do confine the concept of rigging to this manipulation of the voting process itself and the counting of votes. Now, there may be efforts to try to do that — there have been these instances in history — so that's why the risk is not zero. But as a country we should be confident in our electoral process. That doesn't mean it's perfect.

Statisticians talk about confidence levels: that notion that we can be 95 percent confident or 99 percent confident or 99.9 percent confident. Those are pretty good levels of confidence. We just can't say it's 100 percent confidence — you don't need to ask any questions. We should go into this election very confident that it will be a fair and free election and at the same time monitor it so that we can confirm that that was correct, or if something went wrong we have the institutional capacity to correct it through recounts and the courts and the like.

Examples throughout history

There are more of them earlier on. The 19th century had many more examples than the 20th century. So one [piece of] good news is that we are getting better. In terms of the 20th century, perhaps the most well-known and consequential example comes from 1948, Lyndon Johnson's run for the U.S. Senate. It was a very close election, it was decided by 87 votes, and it's pretty clear on the historical record that there were 200 fake votes added to the so-called infamous Ballot Box 13 in South Texas.

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RENEE MONTAGNE, HOST:

At a rally last night in Green Bay, Wis., Donald Trump once again leveled a charge he's been making a lot lately.

(SOUNDBITE OF ARCHIVED RECORDING)

DONALD TRUMP: The media is trying to rig the election by giving credence - and this is so true - by giving credence to false stories that have no validity.

MONTAGNE: And Trump has not stopped at accusing the media. He's been suggesting the actual voting will be rigged against him. That, like much else in this extraordinary candidacy of Donald Trump, has split the Republican Party with many joining Democrats in rejecting that possibility. To find out what it means to rig an election and whether it might indeed happen this year, we reached out to Professor Edward Foley. He's an expert on election law and history at Ohio State University. Welcome to the program.

EDWARD FOLEY: Thanks. It's great to be here.

MONTAGNE: In a broad sense, what constitutes a rigged election?

FOLEY: Well, I like to define rigging an election as the systematic manipulation of the voting process or the counting of ballots. It's intended to distort the outcome of the election, and it's a systematic effort to do that.

MONTAGNE: So historically, tampering with or stuffing ballot boxes, buying votes, any number of things.

FOLEY: Exactly right. It's trying to get a different count at the end of the election from what the voters actually wanted. And I think ballot-box stuffing is the historic example.

MONTAGNE: So getting back to this election, what do you see as the possibility of it being rigged?

FOLEY: I think it's extraordinarily unlikely that we're going to have a rigged election because the fact that our system is so decentralized. The states run elections compared to the federal government. So if you were to try to rig the presidential election, you'd have to try to rig it in multiple swing states targeted ahead of time for rigging, and the attempt to rig it would've had to go undetected.

I mean, that's a lot to happen sort of systematically and under the radar screen. Now, the new phenomenon is the risk of a cyberattack. And again, I think the risk of that is very low as long as the voting machines are not hooked up to the internet. And most states, as I understand it, do not hook up their vote-tabulating equipment to the internet.

MONTAGNE: Well, certainly, these things have happened across the landscape of American political history. I mean, talk about ballot-box stuffing, jokes are made about it where dead people vote. What are examples of actual rigged elections in American history?

FOLEY: Well, there are more of them earlier on. The 19th century had many more examples than the 20th century. So one good news is that we are getting better. In terms of the 20th century, perhaps the most well-known and consequential example comes from 1948, Lyndon Johnson's run for the U.S. Senate. It was a very close election. It was decided by 87 votes. And it's pretty clear on the historical record that there were 200 fake votes added to the so-called infamous Ballot Box 13 in south Texas. And that's an example where a statewide race, a consequential one, can be affected by this kind of problem.

MONTAGNE: The word rigged is being thrown around somewhat loosely in this election. The Trump campaign is saying outright that this presidential election is rigged, and there's been talk of the race for the Democratic nomination back in the spring and early summer as being rigged at the expense of Bernie Sanders and especially after emails surfaced that the head of the Democratic National Committee clearly favored Hillary Clinton over Sanders. Is that part of your definition of rigging an election or an election being rigged?

FOLEY: No, absolutely not. I do think the rhetoric has been irresponsible, some of it, and overheated. And so I do confine the concept of rigging to this manipulation of the voting process itself and the counting of votes. Now, there may be efforts to try to do that. There - again, there have been these instances in history. We've talked about a U.S. Senate race, but we have improved the system since 1948. I don't want to say that the risk of this is zero, but I do think the risk is very, very small. That doesn't mean it's perfect, but we should go into this election very confident that it'll be a fair and free election, or if something went wrong, we have the institutional capacity to correct it through recounts and the courts and the like.

MONTAGNE: Edward Foley heads election law at Moritz - a program at Ohio State University's Moritz College of Law. Thank you for joining us.

FOLEY: Thanks very much for having me.

MONTAGNE: And a reminder that last presidential debate is tomorrow night, and NPR will be live fact-checking starting at 9 Eastern on npr.org. Transcript provided by NPR, Copyright NPR.