During the lead up to and after a general, primary, or special election, references to "voter fraud" and "election fraud" gain attention in news headlines. What do these terms mean? The definitions for voter fraud and election fraud tend to get interchanged frequently. For this article, we'll separate them out as follows. Voter fraud will cover fraud specifically by voters (such as double voting), and election fraud will cover fraud involving the election process (such as tampering with ballots). Both crimes can carry serious penalties.
And, although it won't be discussed here, federal statutes criminalize voter and election fraud as well.
One way to think of voter fraud is unlawful voting by an individual. Every state defines voter fraud (sometimes called unlawful or illegal voting) differently. But, generally speaking, a person commits the crime of voter fraud by doing any of the following acts, intentionally, knowingly, or recklessly:
In most states, a prosecutor must prove that the person committed voter fraud intentionally or knowingly—not by mistake. For instance, a person who mistakenly transposes two digits of their address on their voter registration form hasn't committed intentional fraud. It's also unlikely (though not impossible) a prosecutor would file charges against a person who makes a good-faith effort to determine eligibility but is mistaken.
But exceptions exist. For example, Ohio's illegal voting law doesn't require blameworthiness or knowledge on the part of the offender to be convicted of a felony. Criminal statutes of this nature are referred to as "strict liability" offenses. For a strict liability offense, the prosecutor only needs to prove the illegal act was committed.
(Ohio Rev. Stat. § 3599.12 (2020); State v. Arent, 981 S.E.2d 307 (Ohio Ct. App. 2012).)
Can A Person With a Felony Conviction Vote?
Almost every state places restrictions on voting rights of individuals with felony convictions. While those restrictions are in place, the person is disqualified from or ineligible to vote. A person who votes knowing of their disqualification could face criminal charges for voter fraud. But having a felony conviction doesn't necessarily disqualify a person forever. Most states allow individuals with felony convictions to restore their right to vote after being released from prison, completing their sentence, or fulfilling other requirements (such as getting a pardon). So, it depends. But a person with a felony conviction who has restored their right to vote and registered can cast their ballot. Learn more in our Nolo article: "Can I Vote If I Have a Felony Conviction?"
State penalties for voter fraud vary, but most states make it a felony offense (usually punishable by a year or more in prison). Some states impose different penalties based on what conduct is involved (such as double voting versus fraudulent registration). Kentucky makes it a felony to knowingly vote more than once but makes it a misdemeanor to knowingly vote in the wrong precinct. (Ky. Rev. Stat. Ann. § 119.165 (2020).) Other state laws base penalties on the person's culpability (blameworthiness). For instance, a person who knowingly votes when not registered or authorized commits a felony in Indiana. But a person who recklessly votes when ineligible commits a misdemeanor. (Ind. Code Ann. §§ 3-14-2-9, -10 (2020).)
We will discuss election fraud in terms of fraud involving the election process. Election fraud can involve unlawful acts by election officials or acts done by others that threaten the integrity (reliability and trustworthiness) of the election process.
Election officials, whether at the local or state level, carry the heavy responsibility of ensuring elections are run fairly and accurately. The laws covering election administration reflect this responsibility—covering everything from how a candidate gets on the ballot to duties of poll workers, counting of ballots, and operating voting machines. Here are just some of the election fraud crimes covered in state laws.
It's unlawful for an election official to knowingly or intentionally:
Similar to voter fraud, the penalties for fraud by an election official vary. Crimes reflecting neglect in an official's duties tend to fall under the category of misdemeanors, whereas crimes reflecting corruption or intentional misconduct can carry serious felony penalties. Soliciting (requesting, commanding, or encouraging) an election official to commit fraud is also a crime.
Individuals outside the election process can face serious penalties if they commit acts that threaten the integrity of the election process. Most states make it a crime to:
Penalties for the above crimes range from misdemeanors to felonies, depending on the seriousness of the offense. Felony penalties typically apply when conduct involves corruption, bribery, or threats of harm.
If you've been charged with voter or election fraud, speak with a criminal defense attorney as soon as possible.
If you believe an election official or other individual is unlawfully restricting your right to vote, you might want to speak with a civil rights attorney or the police if you have been threatened or harassed. You can also contact the Election Protection Hotline at 866-OUR-VOTE (866ourvote.org).