By Dustin Hurst | Watchdog.org
BILLINGS — Montana’s chief elections officer says there’s little to no chance voter fraud occurs on her watch, but a new video produced by independent journalist James O’Keefe reveals a simple loophole that could be exploited, thereby allowing someone to vote twice for president.
The explosive video, released just moments ago by O’Keefe’s Project Veritas, purports to show a Democratic staffer in Texas aiding an undercover journalist posing as a college student seeking to vote twice — in-person in the Lone Star State and again in Florida through absentee ballot.
Casting more than one ballot in the same election is a violation of federal and state statutes. Experts say helping someone violate election law also is illegal.
The video also shows Democratic activists helping register a separate undercover reporter who makes very clear he intends to vote twice — in Minnesota and New York.
O’Keefe, whose Project Veritas organization produced the video, identified the Organizing for America staffer as Stephanie Caballero. Documents reviewed by Watchdog.org, and included in the video, indicate that Caballero is on the Democratic National Committee payroll.
When the undercover reporter declares that she intends to vote twice in the general election, Caballero laughs. She asks the reporter, “Are you going to do what I think you’re going to do?”
“Well,” the reporter replies, “I mean, if no one’s going to know . . . .”
Caballero laughs and replies, “You’re so hilarious.”
“I have several friends who have done that and they said that it’s no problem so I figure . . . no one knows,” the undercover reporter says.
In response, the campaign worker seems to suggest that the legal problem of voting in two states is less important than the practical problem of what to say if you’re caught voting twice: “Come up with like, if anyone checks, say, ‘I don’t know.’”
“You can’t vote twice in a federal election,” said J. Christian Adams, a former Justice Department elections lawyer and author of “Injustice,” a best-selling novel about voter fraud. “Obviously, this Stephanie Caballero doesn’t find it as offensive as I do that someone may be planning to vote twice.”
Specifically, Adams said, voting twice violates 42 U.S.C. 1973i (e), which states that anyone who “conspires with another individual for the purpose of encouraging his false registration to vote… shall be fined not more than $10,000 or imprisoned not more than five years.”
“It’s absolutely illegal to help someone double vote,” said Hans von Spakovsky, senior legal fellow at the Heritage Foundation in Washington, D.C.
He cited 42 U.S.C. 1973gg-10.
“A lot of people don’t realize that, in addition to everything that everyone knows about the National Voter Registration Act — that it allowed mail-in ballots and registration through vehicle licensing departments — the last part of the statute put in criminal penalties for fraudulent registration,” said von Spakovsky, who had not yet seen the video.
Chief among the criteria outlined in the code, said von Spakovsky, is the requirement that “you can only register someplace where your claim to be a permanent resident. Obviously, you can’t be a resident of two states.”
Montana Secretary of State Linda McCulloch, in a scathing editorial published Sept. 4 in The Missoulian, assured voters that shrieks of Treasure State voter fraud amount to crying “wolf.”
“Those who use the same anecdotal stories while providing no facts or proof are no different than the little shepherd boy who cried ‘wolf’ when there was no wolf,” McCulloch warned. “Eventually, no one paid any attention to his cries. I am confident Montana voters will do the same.”
Though McCulloch provides an ironclad guarantee that voter fraud never occurs within state borders, a different election official on Tuesday told Watchdog.org that the fraud-by-absentee-ballot process demonstrated in O’Keefe’s video is theoretically possible in Montana.
Yellowstone County elections administrator Bret Rutherford said in a phone interview the scenario’s depicted in O’Keefe’s videos are entirely conceivable in Montana — though he’s skeptical violations of that nature occur.
Two plausible circumstances exist that could lead to voter fraud involving Montana. An out-of-state resident, like a snowbird or college student, moves to Montana while maintaining another address elsewhere. That person could request an absentee ballot from the previous state while simultaneously registering to vote in Montana.
Sure, the elections offices typically ask for a previous address to notify the other state, but new residents can still register without putting down their alternative information.
The same can also happen in reverse: A Montana student could leave the state, register elsewhere while keeping a parent’s address and still request an absentee ballot through the mail.
Montana would have absolutely no way of detecting the malfeasance.
State code 13-35-209 governs fraudulent registration in Montana, making it illegal for anyone to “knowingly cause, procure, or allow the person to be registered in the official register of any election district of any county knowing that the person is not entitled to the registration.
McCulloch’s office did not return a call for comment Tuesday afternoon. Her office mailed out a record 229,178 absentee ballots Tuesday. That represents about 34 percent of Montana’s 664,000 registered voters.
Still, Rutherford is skeptical absentee violations occur. He said he relies on his experience setting up Montana’s statewide voter database a few years ago. When the computer came online, he expected to purge dual records — residents crossing county lines to vote twice in critical elections. But he found none.
“We just didn’t see that stuff,” Rutherford explained. “So, in my mind, we wouldn’t see it state-to-state, either.”
Though voting in two separate states represents a clear breach of federal and state code, the campaign worker in O’Keefe’s video — and others like her — likelywill find herself in the subject of public debate.
Helping someone circumvent that law during the registration process? “That would be a violation because you’re submitting fraudulent information in a registration form,” von Spakovsky said.
Von Spakovsky said prosecutors also might charge voter-registration workers in similar situations with more general violations — conspiracy, for instance, and aiding and abetting a criminal act.
Then, too, there’s the fact that cases like those in the O’Keefe video are open to both federal and local prosecution, von Spakovsky said.
“The key is, and this is what you’ll see in the statue, if you double vote with a federal candidate on the ballot, you’ve violated federal law,” von Spakovsky said. “If the same ballot includes local candidates, that’s a violation of state law.”
Von Spakovsky pointed to a fraud case prosecuted at the state level after the 2008 election. In that incident, he said, “a number of Obama campaign workers were charged in Ohio after it was discovered they were residents of other states sent to Ohio to work on the campaign. They took advantage of easy registration laws there to vote in Ohio, even though they were not residents of state.”
In their book “Who’s counting? How fraudsters and bureaucrats put your vote at risk,” von Spakovsky and co-author John Fund say the Ohio prosecution ended in admissions of guilt by the campaign workers.
Election observers say the problem of double voting is greater in states like Florida, winter home to visitors with permanent residences in colder parts of the country. One group cross-referenced voter registration lists between Ohio and Florida to identify voters with matching full names, birth dates, addresses and voting histories.
Catherine Engelbrecht, president of True the Vote, a nonpartisan election-integrity organization, said her group found more than 19,000 Ohio voters claiming Florida mailing addresses. More than 6,390 people held voter registrations in both states.
True The Vote reportedly found 534 individuals casting ballots in federal elections in both Ohio and Florida. Engelbrecht said 34 cases were turned over to federal and state authorities for investigation last week.
Voter fraud becomes more than the abstract this year in Montana, when a single election — the tight U.S. Senate race between Republican U.S. Rep. Denny Rehberg and first-term Democrat Jon Tester — could decide the balance of power in Congress.
A slip in that race could irrevocably shake voter faith in the process.
Though voting fraud-deniers assert that violations are small — if they exist at all — even the smallest illegal variation in an election night vote count could swing an election.
Minnesota voters found that the hard way, when Republican Norm Coleman and Democrat Al Franken squared off in a vicious U.S. Senate battle royale in the November 2008 election. Two weeks after election night, the state declared Coleman the victor with a narrow 215-vote edge, a margin so small it triggered an automatic recount.
After months of retabulation and court battles, Franken emerged victorious by a mere 312 votes. More than 2.9 million Minnesotans cast ballots in that race.
Fund and von Spakovsky studied that race and found that at least 243 people either convicted of voter fraud or were awaiting trial for allegedly casting illegal ballots in that contest. Minnesota Majority, a conservative-leaning interest group in that state, says it suspects nearly 1,200 felons voted in the Coleman-Franken contest, a clear breach of law.
McCulloch can only hope the same scenario doesn’t play out in Montana next month.
Contact: Dustin@Watchdog.org or @DustinHurst on Twitter. Additional reporting by Kenric Ward and Will Swaim.
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