The Washington PostDemocracy Dies in Darkness

As GOP lawmakers push for more election fraud charges, prosecutors find few cases

Supporters of former president Donald Trump have continued to demand mass arrests over alleged wrongdoing in the 2020 elections. But prosecutors have filed only a handful of charges in swing states. (Eric Lee/Bloomberg)

In Wisconsin, two local prosecutors in recent days have announced they will not file criminal charges over allegations that a bipartisan state elections commission broke the law by changing voting rules in 2020.

In Georgia, a hotbed of fraud claims, state election officials so far have referred a total of two 2020 cases to prosecutors.

And in Arizona, ground zero for numerous GOP-led efforts to prove mass electoral wrongdoing, the state’s Republican attorney general has so far filed fraud cases against just 12 individuals.

Across the country, officials are openly resisting calls from allies of former president Donald Trump for mass arrests of people they claim stole the presidential election for Joe Biden. In fact, in swing states targeted by Trump, officials have so far brought only a handful of fraud prosecutions.

But demands for criminal cases tied to the 2020 election continue to stress the political system and put pressure on prosecutors, particularly elected Republicans. Trump supporters also are pushing GOP lawmakers, who have already enacted numerous laws tightening voting rules, to stiffen penalties for fraud and create investigative teams aimed at rooting out election malfeasance — efforts that critics say will further suppress voting.

There is no national tracking of voter fraud cases, and comprehensive surveys are difficult, given that cases are often undertaken by local prosecutors. But a Washington Post survey of attorneys general and large district attorney offices in the six swing states turned up just 39 cases of people charged with illegal activity related to the November 2020 election.

Most were felons who are alleged to have registered to vote or cast ballots despite having lost the right to vote because of their criminal conviction. A few allegedly voted in the name of dead relatives. They were for the most part individuals alleged to have made snap decisions, often for convenience. Their actions typically affected only a vote or two, if that; some were caught before the ballots were processed.

Scaring voters and election officials depresses turnout and makes elections more difficult to run,” said Sarah Labowitz, the policy and advocacy director of the American Civil Liberties Union of Texas, about the GOP push to find voter fraud cases. “It’s a waste of money to propose yet more police just for elections, especially when there’s no evidence of widespread election crimes. We should be spending money to make voting easier and more accessible, by doing basic things like online voter registration.”

Rather than a mass conspiracy or serious wrongdoing by elections officials, most of the cases that have been brought so far more closely resemble another case that has recently drawn public scrutiny: that of Trump’s former chief of staff Mark Meadows, who is under investigation by North Carolina state officials over reports that he registered as his voting address a mobile home he never lived in.

In Wisconsin, Milwaukee County District Attorney John T. Chisholm, for instance, said his office received 33 referrals of possible voter fraud stemming from the November 2020 vote and has so far filed six criminal cases, all against people alleged to have registered or voted despite being felons. The office has closed 22 cases without charges and continues to examine five others.

“Look, at the end of the day, we’re not making excuses for it, but the types of misconduct that occur ... they have almost no capacity to alter an election. Generally, they’re very limited, short-term bad decisions by individual actors, not some vast conspiracy,” said Chisholm, a Democrat.

Wendy Weiser of the Brennan Center for Justice said GOP lawmakers are directing millions of dollars to combat a non-problem rather than investing in underfunded election offices or providing better protections against the growing tide of threats to election workers. In Florida, lawmakers voted this month to create a $2.5 million Office of Election Crimes and Security and to impose steeper fines and prison terms for certain practices, such as third-party ballot collection, that were common in the state until they were prohibited last year.

Weiser, who leads the Brennan Center’s Democracy Program, said such moves will further erode faith in U.S. elections, and embolden private individuals to mistrust and potentially attack election officials.

“It brings us closer to countries where people don’t feel safe voting and where public officials don’t feel safe doing their jobs properly,” Weiser said. “We are inching closer and closer to those kinds of regimes. These are the kinds of things that could really strike a potentially fatal blow to democracy.”

In recent weeks, Trump supporters’ claims of major electoral fraud have continued to fall flat under the scrutiny of prosecutors. Such claims have been particularly acrimonious in Wisconsin, as a special counsel appointed by the Republican legislature has cast doubt on the election results there.

‘A real conflagration’: Wisconsin emerges as front line in war over the 2020 vote

Those claims picked up some momentum in October, when a sheriff in Racine County recommended felony criminal charges of election fraud and misconduct against five of the six members of a bipartisan state commission over rules they adopted in 2020 for absentee balloting at nursing homes during the pandemic.

Last month, though, Racine’s Republican district attorney announced that she would not file charges, arguing that she had no jurisdiction because none of the commission’s members live in her district. In a four-page letter, she noted that she was “disappointed” that her hands were “tied by this jurisdiction issue” and appeared to endorse the view that the commission had broken the law.

On March 7, Chisholm’s office rejected that claim, declining to charge two members of the commission who are Milwaukee County residents. He found that the guidance they issued was only advisory. And he said there was no evidence commissioners had nefarious intent when they adopted the rules, as would be required to prove the advice that the two issued was illegal. “Their only intent was to make sure under really difficult circumstances people got to vote,” he said.

Eight days later, Green Lake County District Attorney Gerise LaSpisa, who was appointed by the state’s Democratic governor, likewise concluded that in the case of a third commissioner, there was not “sufficient evidence to prove beyond a reasonable doubt at trial that a crime was committed.”

Overall, a report from the state election commission shows that district attorneys in the state have so far brought 16 cases in connection with the 2020 election, accounting for less than .0001 percent of the 2.19 million votes cast.

But despite those setbacks, conservative lawmakers in the state continue to press claims of mass illegality. Earlier this month, former Wisconsin Supreme Court justice Michael Gableman issued a report about the 2020 election commissioned by the GOP-led state House. Stacked with investigators who had expressed the view that Biden’s win was unfair before they started work, the review asserted that the state’s election commission had committed “unlawful acts” and had accepted grant money from a nonprofit organization to help administer elections, arrangement that amounted to “bribery.” State and federal courts have previously found that accepting the money was not illegal.

A similar story has played out in Arizona, another key swing state that Trump lost to Biden.

In September, a special election integrity unit working for state Attorney General Mark Brnovich (R) opened an investigation after the release of a privately run review, commissioned by the Republican-led state Senate, of the 2020 vote in the state’s largest county.

The review reconfirmed that Biden defeated Trump in Maricopa County, but the contractors who conducted it termed tens of thousands of ballots potentially problematic and suggested county officials might have deleted data before turning material over to the Senate in response to subpoena. Brnovich, who is running in a competitive primary for the Republican nomination for the U.S. Senate, quickly announced he would investigate.

“I will take all necessary actions that are supported by the evidence and where I have legal authority. Arizonans deserve to have their votes accurately counted and protected,” Brnovich said at the time.

In January, Maricopa’s GOP-led Board of Supervisors and Republican state recorder jointly published a 93-page rebuttal of the legislative findings, declaring the November 2020 election results were “accurate and reliable” and denying that any data was deleted.

But a spokeswoman for Brnovich said this week that his “comprehensive review” of the Senate’s findings “is still ongoing.” She declined to comment further.

Maricopa Board of Supervisors Chairman Bill Gates said Brnovich’s investigators have been in frequent contact with county officials, requesting interviews and documents. County officials conducted a tour of election facilities for the investigators, and the investigators lodged their most recent question within the past month.

“This continues to grow. There continues to be new requests,” said Gates. He said some questions appeared to have been drawn directly from the September report by the Cyber Ninjas, the Senate’s lead contractor in the private review of the election. But others, he said, appeared derived from more recent conspiracy theories that have cropped up in pro-Trump media.

This week, a Republican state senator issued a new subpoena to the county, alleging that it has not been fully cooperative with Brnovich. Gates responded that the county has given the attorney general 4,400 documents and answered his office’s questions as they have been lodged.

Brnovich has come under intense pressure from fellow Republicans to bring charges related to the election. His office has been the site of frequent protests demanding prosecutions. Those protests include demonstrations led by Kari Lake, a former Arizona television news anchor running for governor with Trump’s endorsement. Trump issued a statement Friday demanding to know when Brnovich would “rule on all of the Election Fraud and large-scale Election Irregularities that wait before him?”

“People want to know whether or not Attorney General Brnovich is up to doing the right thing, or is just politics as usual,” Trump wrote.

Thus far, his office has brought 12 cases, his spokeswoman confirmed. None involve any large-scale illegality. Several involved alleged felons voting. One woman in the city of Scottsdale in Maricopa County has pleaded guilty to casting a ballot in her dead mother’s name. Another woman, in Cochise County, has been charged with mailing in an early ballot filled out by her mother a month after her death. That case is ongoing. In 2020, one of the women was a registered Republican and the other had no party registration.

In Georgia, another swing state where Trump’s ire has led GOP legislators to pass restrictive new voting rules, new allegations of fraud in the 2020 vote are continuing to occupy investigators’ time. Still, so far, the allegations have not led to any criminal cases.

Once such claim was brought by the Texas-based right-leaning group True the Vote, which in September produced data allegedly showing that owners of some cellphones had made multiple trips to the vicinity of ballot drop boxes. The group argued that this pointed to potential vast illegal ballot harvesting.

But the state’s lead law enforcement agency, the Georgia Bureau of Investigation, examined the data and concluded that the group had failed to provide “any other kind of evidence” tying the cellphones to ballot harvesting, identifying no witnesses and specifying no potential defendants. “As it exists, the data, while curious, does not rise to the level of probable cause that a crime has been committed,” the agency’s director wrote in a letter on Sept. 30. Secretary of State Brad Raffensperger (R) has said his office will investigate the matter.

The two cases of alleged voter fraud that the Georgia State Elections Board has referred to prosecutors are typical of other cases that have been brought nationally.

In one case, state election investigators alleged that a Greene County man voted illegally because of a felony conviction. In the other, they alleged that a man received a mail ballot in his post office box that was not addressed to him, but he completed the ballot anyway and sent it in. That case is pending in Walker County, Ga., and charges are likely, according to Chris Arnt, the local prosecutor.

But Arnt said such cases are exceedingly rare and also hard to prosecute in many instances, particularly those involving allegations that a mail ballot was illegally voted from an address with multiple residents, making it difficult to prove who did it. “It’s rare that we have actually a prosecutable voter fraud case,” Arnt said in an interview.

He also said criminal intent is difficult to prove in the case of unintended mistakes, such as when a voter casts a ballot by mail, forgets having done so and then shows up at the polls on Election Day to vote. “That’s legitimately a mistake,” Arnt said.

One criminal investigation in Georgia that did not originate with the State Elections Board is underway in Fulton County, home of Atlanta, where District Attorney Fani Willis announced more than a year ago that she would investigate whether the Trump campaign solicited fraud by trying to overturn the results of the 2020 election in the state. A grand jury is expected to begin examining the case in May. A spokesman for Willis, a Democrat, said a decision about whether to bring charges is expected this year.

A spokeswoman for Michigan Attorney General Dana Nessel (D) said her office has charged six people with illegal activity related to the 2020 election. One man was charged after he allegedly filled out a ballot for his daughter rather than forwarding it to her. In the most serious cases, two women were accused of submitting a total of 50 ballot applications on behalf of incapacitated people or people in an assisted-living facility. In both cases, election workers spotted the scheme and alerted authorities before the ballots were returned.

Chisholm, who has been Milwaukee’s top prosecutor since 2007, said calls for criminal prosecutions that appeared largely tied to whether a preferred candidate loses are dangerous.

“If that’s the standard you’re going to hold — that the only thing that matters is that we win, and if we don’t win, then the other side cheated — that’s just playing with fire,” he said. “Everyone knows it’s playing with fire.”