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Fact check: Echoing Trump, Barr misleads on voter fraud to attack expanded vote-by-mail

The attorney general's remarks have worried civil rights advocates who fear the Justice Department will selectively enforce voting laws.
Attorney General William Barr speaks on Operation Legend, the federal law enforcement operation, during a press conference in Chicago on Sept. 9, 2020.Kamil Krzaczynski / AFP - Getty Images

Attorney General William Barr in recent weeks has made a series of misleading or unfounded claims about the U.S. elections, vote by mail and voter fraud, alarming civil rights advocates who fear his comments will undermine confidence in the election and the rule of law.

Barr’s remarks — ranging from the debunked assertion that mail voting fraud is widespread to warning without evidence that foreign countries could possibly counterfeit ballots — are largely baseless, according to election experts and researchers interviewed by NBC News, and echo falsehoods pushed by President Donald Trump. The president has for months denigrated the increased use of mail voting during the coronavirus pandemic despite having voted by mail himself as recently as August.

Misinformation about the election, spread by the top law enforcement official in the country, is added cause for concern, some civil rights advocates said.

“It’s grossly irresponsible and actually really undermines the credibility and legitimacy of the Justice Department in protecting voting rights,” Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights, said.

Gupta was head of the civil rights division of the Department of Justice, which oversees voting issues, under the Obama administration.

Barr “seems very intent on carrying out the president’s partisan and personal agenda instead of actually representing the U.S. and protecting the most vulnerable communities,” she added.

Here are some of Barr’s statements, and the facts.

Claim: Vote by mail means there’s no ‘secret vote’ which can lead to 'paying off a postman'

In an interview with a Chicago Tribune columnist published last week, Barr argued that people would pay off U.S. Postal Service workers in order to commit election fraud.

“There’s no more secret vote with mail-in vote. A secret vote prevents selling and buying votes. So now, we’re back in the business of selling and buying votes. Capricious distribution of ballots means (ballot) harvesting, undue influence, outright coercion, paying off a postman … ‘here’s a few hundred dollars, give me some of your ballots,’” the attorney general said, according to the Tribune.

This is extremely misleading. Mail ballots are not transferable votes. Election workers verify voters' identities by matching signatures and verifying identifying information, so that a misdirected ballot — such as those sent to a wrong address — cannot be cast by just anyone.

And it’s not true that mail ballots aren’t “secret” as a rule. States use a variety of precautions to try andkeep people’s absentee votes private: 16 states require the use of secrecy sleeves by law, though other states may choose to use them, as well. Other states have privacy precautions to keep election workers from tying specific votes to the ballot envelopes that are used for verifying voters’ identities.

Washington, a state that has been voting by mail for decades, uses secrecy sleeves or envelopes to protect voters’ privacy, Kylee Zabel, communications director for Republican Secretary of State Kim Wyman, said. She said ballots are not distributed “haphazardly,” as Barr has stated.

“County election officials must account for every ballot issued, returned, and accepted in their reconciliation reports they compile for every election. In addition, a majority of Washington’s counties use specific Intelligent Mail barcodes to track outbound mail at the voter level,” Zabel said in an email.

In Utah, a state that began transitioning to mail voting in 2012 and now votes entirely by mail, county clerks verify a voter’s signature without looking at the ballot, according to Director of Elections Justin Lee. Weber County, Utah, even made a video showing voters how the process works.

“Once the voter's information is verified, the ballot is separated from the envelope so there is no information that ties the ballot to a specific voter, thus ensuring the secrecy of the vote,” Lee said in an email.

Zabel and Lee both said they had not seen reports of postmen being paid off.

As for ballot harvesting, that’s a politicized term used for the collection of ballots by community groups, volunteers orpaid operatives. Some states bar the practice, but others see it as just another mechanism for voters to transport ballots back to election officials. On Native American reservations — some of which don’t have home mail service — it’s a common voter turnout tool.

This kind of rhetoric appears to mirror disinformation spread by Russian operatives and state media about the integrity of the country’s elections amid the pandemic since March 2020, according to a Department of Homeland Security intelligence bulletin obtained by ABC News.

“Russian state media and proxy websites in mid-August 2020 criticized the integrity of expanded and universal vote-by-mail, claiming ineligible voters could receive ballots due to out-of-date voter rolls, leaving a vast amount of ballots unaccounted for and vulnerable to tampering,” the bulletin said.

Wendy Weiser, vice president of the Democracy Program at the Brennan Center for Justice at the NYU School of Law, said she testified to Congress this summer that one of the biggest threats to American elections is allowing the president, with help from the attorney general, to "undermine confidence in the election system, which has been the principle goal of Russia and other foreign adversaries.”

“If we allow that to happen, we’re doing that job for them,” she said.

The Department of Justice did not respond to a detailed request for comment on Barr’s claims.

Claim: Foreign countries could counterfeit mail ballots

In late June, Barr suggested in an interview with NPR that foreign countries could counterfeit mail ballots – days after Trump made the same claim in a tweet.

"There's so many occasions for fraud there that cannot be policed. I think it would be very bad. But one of the things I mentioned was the possibility of counterfeiting,” Barr said then of voting by mail, adding he didn’t have any evidence of counterfeiting, instead saying it was “obvious.”

Pressed on this claim Sept. 2 in an interview with CNN, Barr said, “I’m basing that on logic.”

Speaking with NBC News on Sept. 9, the attorney general said fraud and coercion are bigger concerns, but that “mail-in ballots do provide a vector for foreign influence.”

“It might even be cheaper for the foreign government to counterfeit ballots in some critical districts than to engage in the other kinds of activities they have,” Barr continued. “What I'm saying is foreign intelligence services are very able. They can counterfeit currency and they have a lot of capacity. And I don't think counterfeiting a state ballot is particularly challenging for them if they wanted to do it.”

This is baseless, according to experts. As NBC News has reported previously, there are numerous safeguards that keep American elections secure. Absentee ballots are printed on a particular paper stock — by specific vendors — and are traceable, sometimes with preprinted bar codes. They are then sent to registered, eligible voters. Once voters fill them out, most states use the voter’s signature to confirm that the eligible voter cast the ballot. They're also all paper, allowing for an audit or recount over any concerns.

Rick Hasen, a professor and an election law expert at the University of California, Irvine, said in June when Trump made this claim that it was “ridiculous” — and very difficult for a foreign actor to pull off successfully.

“It would be quite difficult for a foreign country to try and make a perfect copy of such ballots. They would have to have accurate voter information including voter identifying information, such as signatures or the last four of people’s driver’s license numbers,” he said then. “There are just so many things that would make it obvious that these ballots would be fraudulent that such a scheme would be easily caught and deterred.”

Claim: We haven’t done widespread mail voting before

“We haven’t had the kind of widespread use of mail-in ballots as being proposed. We’ve had absentee ballots, from people who request them from a specific address. Now, what we’re talking about is mailing them to everyone on the voter list when everyone knows those voter lists are inaccurate,” Barr said in the Sept. 2 interview with CNN.

This is misleading. Before the pandemic, five states (Washington, Colorado, Oregon, Utah, and Hawaii) already voted entirely or almost entirely by mail. In other states, mail ballot options — often called absentee ballots — are widely used. A quarter of the electorate voted by mail in 2018, according to the U.S. Election Assistance Commision’s survey of election administrators. It may not be the predominant method of voting nationwide, but in western states including California, Arizona, Washington and Colorado, mail voting is how the vast majority of people vote. What’s more, mail voting and absentee ballots are in essence the same thing. Barr’s criticism — which mirrors the president’s — has to do with election administration — whether states mail ballots to voters or make them request the ballots first.

He is however right to say that American election rolls are inaccurate — America’s decentralized systems are designed for registration, not updates, and many jurisdictions struggle to stay fully up to date, resulting in bloated and messy voter rolls. But a misdirected ballot does not automatically mean fraud. States confirm identifying information like signature matches to verify ballots, so a ballot meant for one person that goes to an incorrect address cannot easily be cast by another person.

Claim: Mail elections have found substantial fraud and coercion

“Elections that have been held with mail have found substantial fraud and coercion,” Barr told CNN on Sept. 2.

This is not the case in the U.S. Numerous studies have debunked the notion that there is substantial, widespread voter fraud in American elections, whether those elections are conducted predominantly by mail or otherwise. The five states that vote almost entirely by mail do not report higher rates of fraud or coercion than states that vote in person mostly at polling sites. When incidents of fraud do occur rarely — like a local New Jersey election in May that saw an attempted fraud operation, for example — they are prosecuted.

Weiser said the attorney general's repeated false claims were "demoralizing" and "damaging" to both the electoral system and the rule of law. But she said she's been heartened to see people stepping up to rally behind the election system amid a pandemic that's challenged every facet of it.

"We’re seeing election officials pushing back, we’re seeing civil society mobilize to a degree to protect the election," she said, pointing to groups like the NBA offering up their facilities as polling locations and employers giving people time off to serve as poll workers. "While there are undoubtedly unprecedented challenges, there’s a real mobilization to push back against those challenges

Claim: Trump can use federal law enforcement to prevent voter fraud

Asked on Fox News on Aug. 20 if he'd use "poll watchers" to prevent voter fraud, the president said he'd be sending "sheriffs" and "law enforcement" and "hopefully, U.S. attorneys, and we’re going to have everybody and attorney generals."

Asked about the claim, Barr backed Trump up, saying in the Sept. 2 CNN interview that “it depends on if he’s responding to a particular criminal threat" and said that such authority had been used in the past to enforce civil rights.

This is false. The president cannot legally send federal law enforcement officials to patrol polling places, and he has no authority over local officials. Federal election monitors — often attorneys — have gone to polling sites to enforce voting rights in the past, but they weren't law enforcement officials.

"It’s actually criminal to have armed federal or military officials in polling places," Weiser said. "If something like that happened, it would be a coup."

Acting Homeland Security Secretary Chad Wolf said his department has no authority to send officers to polling places; the Department of Defense issued a directive prohibiting the National Guard and the Department of Defense personnel from conducting “operations at polling places.”

It's possible the president is talking about the effort by his campaign and the Republican National Committee to recruit 50,000 poll watchers and attorneys to oversee voting. But deputizing law enforcement agents — even while off-duty — might get them into trouble. For nearly four decades, the GOP was prohibited from running national poll watching operations without prior judicial review because the party had run afoul of the law by doing something similar years ago.

In 1981, armed off-duty cops patrolled predominantly minority voting districts in New Jersey, according to news reports, resulting in a consent decree that banned such operations without prior judicial approval to ensure they wouldn't be discriminatory. The ban expired ahead of the 2020 election.