A man walks to use a voting booth March 1, 2016, at Colin Powell Elementary School in Centreville, Va. Talk of a "rigged" election has brought voter fraud into spotlight.(Photo: Paul J. Richards, AFP/Getty Images)
INDIANAPOLIS — If ever there was a time to reveal how Indiana elections could be rigged, it was in April 2008.
That's when the U.S. Supreme Court was weighing whether Indiana lawmakers could require voters to show government-issued identification at the polls. The state's Republican-controlled Legislature had passed a stringent voter ID law in 2005 based on the argument that it was necessary to prevent voter fraud. The law was challenged in court.
Justice John Paul Stevens, writing for the Supreme Court's majority in Crawford v. Marion County Election Board, said the state's "interest in counting only the votes of eligible voters" justified voter ID. Thus, the law was ruled constitutional.
But in doing so, Stevens also included in his opinion a statement that continues even today to strike at the core of ongoing — and often partisan — debates over the prevalence of voter fraud. He said there was scant evidence that anyone in Indiana had ever illegally voted in person.
"The only kind of voter fraud that (Indiana's voter ID law) addresses is in-person voter impersonation at polling places," Stevens wrote. "The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history."
Indiana has seemingly exhausted the topic of voter fraud. Republicans passed a law that they said would stop it. Democrats argued that it never existed to begin with. Yet fears of nefarious election activities have been stoked again, by a presidential candidate warning of a "rigged" election and by Indiana's secretary of state raising the specter of "voter fraud."
Last week, Indiana election officials said thousands of voter registration forms contained first names and birth dates different from what voters provided. The findings were turned over to Indiana State Police.
The latest speculation raises questions about what constitutes voter fraud, whether there is new evidence of it in Indiana and whether the state's elections are at risk of being taken over by partisan forces.
'Voter fraud is real'
Republican presidential nominee Donald Trump has made plenty of headlines for asserting that his race against Democrat Hillary Clinton could be stolen by "large-scale voter fraud." But Trump isn't alone.
Trump's running mate, Indiana Gov. Mike Pence, raised eyebrows during an Oct. 18 campaign stop in Fayetteville, N.C., when he echoed Trump's fears.
To determine whether Pence is right requires a definition of voter fraud. A 2006 U.S. Election Commission report concluded that the term "voting fraud" is problematic because it refers only to a "voter who intentionally impersonates another registered voter and attempts to vote for that person."
The Supreme Court couldn't find a single instance in which that has happened in Indiana. Justin Levitt, a professor at Loyola Law School in Los Angeles, found in 2014 that only 31 credible instances of voting fraud had occurred out of 1 billion votes cast in the U.S. since 2000.
Michael Pitts, a law professor and dean's fellow at the Indiana University Robert H. McKinney School of Law who has researched in-person voter fraud, said there is little opportunity for people to misrepresent themselves at polling places, especially because of Indiana's voter ID law.
"There is not a lot of evidence of in-person voter fraud, which is related to photo-identification laws. What a photo ID law aims to prevent is voter impersonation fraud — somebody walking into a polling place and impersonating somebody else," said Pitts.
That doesn't mean that election crimes — a broader term favored by the Election Commission — don't occur. They just typically don't happen at a polling place. While experts agree that election crimes almost certainly can't swing the result of a presidential race, they can cause big problems for local contests where results can sometimes turn on a handful of votes.
Handful of cases
Low-level election crimes probably happen in every cycle with absentee ballots, said David Orentlicher, an Indiana University law professor.
This can happen if a voter sends in absentee ballots for himself and his spouse, or for a child who is away from home, he said.
Yet widespread, systemic voter fraud meant to tip an election is unusual, Orentlicher said.
The Indiana secretary of state's office does not keep a database of incidents of election crimes. But a search of court records and The Indianapolis Star archives indicates that only a handful of such cases have resulted in state or federal charges in the past 15 years.
Valerie Warycha, a spokeswoman for the office, said two cases of voter fraud have been prosecuted by the state during the tenure of Connie Lawson, the current secretary of State.
Tim Horty, a spokesman for the U.S. Attorney’s Office of the Southern District of Indiana, said prosecuting voter fraud cases on the federal level is rare.
No fake voters
Most experts agree on three things: Election crimes happen. They almost always occur outside polling places. And they don't influence national elections.
"There’s no question some amount of voter registration fraud happens," Pitts said. "It generally seems to be related to people being paid to collect registration forms. If you get paid to generate registration forms, you’re incentivized to make them up. That is certainly fraud.
"But there isn’t much evidence that voter registration fraud translates into actual people coming to the polls under a false identity. And that’s a distinction that needs to be drawn. Fake registration forms happen, but whether that actually translates into a fraudulent vote is a totally separate question."
If there was evidence someone could show up at a poll and vote under a fake name, Stevens would have cited it in his 2008 Supreme Court opinion upholding voter ID in Indiana, said Luis Fuentes-Rohwer, a professor and Harry T. Ice faculty fellow at the Indiana University Maurer School of Law.
Instead, voters can be confident that the results of the Nov. 8 election are legitimate, especially in statewide and national races.
"Justice Stevens would have been well-served if he had evidence of voter fraud in the state," said Fuentes-Rohwer. "If he had voter ID examples of fraud, he would've given them to us. He would've used them to support his case. He didn't. He didn't have them."
Contributing: Fatima Hussein, Tony Cook and John Tuohy, The Indianapolis Star. Follow James Briggs and Madeline Buckley on Twitter: @JamesEBriggs and @Mabuckley88