James Bopp, Jr.: The Story Behind New Mexico’s Victory Over Vote-Fraud-Protection-Free Mail-In Voting

King County Election workers collect ballots from a drop box in the Washington State primary, Tuesday, March 10, 2020 in Seattle. Washington is a vote by mail state. (AP Photo/John Froschauer)
AP Photo/John Froschauer

The coronavirus pandemic has renewed Democrat demands for changing our elections to mail-in balloting. The tip of the spear was their lawsuit in the New Mexico Supreme Court where Democrat public officials demanded that the Court order all mail-in balloting for the primary election on June 2, prohibiting absentee and in-person balloting.

In a stunning decision late Tuesday, after a two-hour oral argument, the New Mexico Supreme Court refused. If Democrats had won, they would have taken that decision nationwide.

As Breitbart News reported, True The Vote filed an amicus brief, prepared by The Bopp Law Firm on behalf of New Mexico voters, arguing that, if the court had ordered mail-in balloting, where ballots are just mailed wholesale to all registered voter, the right to vote of eligible registered voters would be violated. A federal lawsuit was in the works if the New Mexico Supreme Court had jumped off that cliff, but they didn’t.

Prior to this crisis, several states had adopted mail-in balloting, such as Washington, Colorado, Oregon, Utah, and Hawaii. But this year, these demands have intensified, and state officials have responded by imposing mail-in balloting by fiat, such as in Nevada, or by asking state or federal courts in New Mexico and Texas to impose mail-in balloting contrary to state law.

Mail-in balloting schemes impose significant fraud-inviting changes in voting. The mail-in balloting scheme Democrats argued for in New Mexico would strip away the substantial protections against voter fraud that exist in absentee and in-person voting procedures.

Thus, not all “voting by mail” is the same. Vote fraud protections in absentee balloting are much more substantial, which is why Democrats want to replace that with their mail-in balloting schemes.

The most important fraud protection incorporated into absentee balloting in New Mexico and almost all states is that a voter must request, by application under penalty of perjury, an absentee ballot for the upcoming election. This ensures that the voter is actually alive, what the person’s current address is, and provides an audit trail. A prior application also allows election officials and others time to verify the voter’s existence and eligibility. The mail-in balloting scheme Democrats wanted in New Mexico does not require an application, just wholesale mailing of ballots to all registered voters.

Furthermore, the New Mexico Democrats wanted to abolish in-person voting. Of course, in-person voting procedures in New Mexico have substantial fraud protections, such as poll watchers and voter ID requirements. And in-person voting is also a fail-safe for voters who decide to vote right before an election, who didn’t receive mail-in ballots, or who have been out-of-state. Until recently, all states have historically agreed that voter fraud protections make sense to protect the integrity of and faith in our elections, but mail-in balloting would strip them away. This would “increase the risk of fraud,” as the bipartisan 2005 Carter Baker Commission Report found.

But it is not just good policy that requires the vote fraud protections. As explained in the True The Vote amicus brief in the New Mexico Supreme Court, since the 1964 U.S. Supreme Court decision in Reynolds v. Sims, the Court has recognized “the right of all qualified citizens to vote” and that the right to vote can be infringed by being “denied outright” and by being “destroyed by alteration of ballots [or] diluted by ballot-box stuffing.” Everyone champions the first, but Democrats ignore the second.

So fraud prevention measures are designed to protect the constitutional right to vote by preventing vote dilution — as in the dilution of the vote of eligible, registered voters by the votes of illegal voters. Failure to have adequate fraud protection measures, such as in the mail-in voting scheme championed by New Mexico Democrats, violates the right to vote.

The recent Wisconsin primary has demonstrated two things about this: that absentee balloting is a viable option to in-person voting (so we don’t need to strip away major fraud-prevention protections to make it work) and that there are pitfalls with mail balloting.

With the outbreak of the coronavirus, applications for traditional absentee ballots in Wisconsin skyrocketed. In the 2016 spring election, about 250,000 voters voted absentee, but last week more that 850,000 voters cast absentee ballots by election day out of 1.2 million requested, an estimated 81% return rate. Furthermore, despite the heath concerns, the turnout was higher, as a percentage of voting age population, than the average turnout for the last 32 years.

But the pitfalls of mailing ballots were also on full display. The New York Times attributed most of the problems to the inefficient, even incompetent, U. S. Postal Service, which resulted in an “election mess” of thousands of missing, undelivered, delivered late, or just lost ballots, including hundreds put in bins by post office employees and never delivered.

But the wholesale mailing of ballots to all registered voter also has two big problems of its own that implicate the right to vote. First, there are many registered voters who are currently ineligible, or not at the address indicated, but on the registration rolls, who will receive mail ballots. Reliable estimates suggest that there are 24 million invalid names on voter registration lists in the United States.

And the U.S. Supreme Court, in 2008 in Crawford v. Marion County Election Board, has already recognized that these bloated registration rolls, often as a result of Democrat opposition to their purging of ineligible voters, justify voter ID requirements to “deter and detect voter fraud,” which is “real” and “could affect the outcome of a close election.”

Thus, mailing to all registered voters, without a prior application, just floods the state with ballots readily available for fraudulent use by unscrupulous persons. These illegal votes would dilute the votes of eligible registered voters, violating their right to vote.

Second, there are also eligible registered voters who will not get a mailed ballot because they have moved or are on an “inactive” list. If in-person voting is abolished, as New Mexico Democrats demanded, these eligible registered voters won’t have the option of in-person voting. As a result, they will need to fulfill burdensome requirements to timely get a ballot mailed to them that other eligible registered voters don’t have to fulfill.  This is an unconstitutional burden on their right to vote.

So whether one wants to flood a state with mailed ballots in order to facilitate vote fraud, which Republicans feared in New Mexico, or because vote fraud is a fantasy, which Democrats believe, mail-in balloting without sufficient fraud protections violates a voter’s right to vote. The mail-in balloting scheme Democrats demanded in New Mexico did not have these and was unconstitutional.

And while the Democrats lost this in New Mexico, they are trying to take this nationwide and can expect federal lawsuits to protect the voter’s right to vote.

James Bopp, Jr. has a national constitutional law and Supreme Court practice with The Bopp Law Firm, PC, in Terre Haute, Indiana, is General Counsel to True the Vote, and is campaign finance law counsel to the Trump campaign. He represented Citizens United in Citizens United v. FEC and previously served as Vice Chairman of the Republican National Committee. His law firm prepared the True the Vote amicus brief filed in the New Mexico Supreme Court.

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