Eight Myths About Election Rules That Both Parties Repeat Every Cycle

Both parties have a favorite wrong fact about elections. It gets repeated on cable, forwarded by uncles and printed on yard signs, and it survives for one reason: it is useful to the person saying it. A wrong fact that helps your side feels, in the moment, like a right one.

Here is a modest proposal. Before we argue about what the rules should be, let us agree on what they are. The honest policy arguments, about ID, mail ballots, list maintenance and counting, get sharper when the myths are cleared out of the way, and a conservative movement that wants to win those arguments should want the ground cleared first. Below are eight claims, some popular on the right, some on the left, each tested against the text of the law and the record, each with a verdict. I will tell you where my own side has it wrong, because that is the only way you will believe me when I tell you where the other side does.

Myth one: "Washington runs our elections"

The claim. Federal officials, or a federal agency, run American elections, so changes must come from Congress.

The record. Article I, Section 4, Clause 1 says: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." The first move belongs to the states. Elections are run by thousands of local jurisdictions, county clerks, town clerks and boards, under state law. Congress has a backstop power to alter the rules for federal elections, and it has used it, in laws such as the National Voter Registration Act of 1993 and the Help America Vote Act of 2002. For presidential electors, Article II, Section 1 gives each state the power to appoint electors "in such Manner as the Legislature thereof may direct."

Verdict: mostly false. Washington sets some floors, but states and localities run the machinery. This is a federalism point conservatives usually like, and it is why a citizen's best lever is a state legislature and a county office. See The Elections Clause Lets States Run Elections and Lets Congress Step In.

Myth two: "Provisional ballots are never counted"

The claim. A provisional ballot is a polite way of throwing your vote away.

The record. The Help America Vote Act of 2002 requires that a voter who claims to be registered and eligible, but whose name does not appear on the list or whose eligibility is questioned, be allowed to cast a provisional ballot. After the election, officials check whether the voter was eligible under state law. If so, the ballot is counted under state law. If not, it is not. Rates vary from state to state, and a large share of provisional ballots in many states are counted, though a ballot cast in the wrong precinct, or by someone not registered, is typically not.

Verdict: false. Provisional ballots are counted when the voter turns out to be eligible, and the law requires a method for finding out. The sensible advice for a voter is to use one if offered and to follow the instructions on how to resolve any problem afterward, such as showing ID to the election office within the deadline.

Myth three: "Noncitizens may lawfully vote in federal elections somewhere"

The claim. In some places, noncitizens can vote for President or Congress, so the system has a gaping hole.

The record. Federal law makes it a crime for a noncitizen to vote in a federal election. Section 611 of Title 18, enacted in 1996, makes it unlawful for any alien to vote in an election held for federal office, with limited exceptions that do not apply to ordinary cases. Registering to vote on a federal form while a noncitizen carries penalties too, and it can lead to deportation under the immigration laws. A small number of localities have, over the years, allowed noncitizens to vote in local elections, such as school board races, under their own local law, and that is a real policy dispute worth having. But those ballots do not include federal races.

Verdict: false for federal elections. The honest statement is that a noncitizen cannot lawfully vote for President or Congress anywhere, and a few places have allowed local votes, which is a separate argument. Our side makes its case better when it says so. Conservatives who favor tighter checks at registration have a good argument, which we make in Only Citizens Vote, the Case for Proof of Citizenship When Registering, without needing to claim that the law permits what it forbids.

Myth four: "Recounts usually flip the result"

The claim. If a race is close, a recount will probably overturn the winner. (Or its mirror: a recount is a pointless ritual.)

The record. In statewide races that go to a recount, the recount normally changes the tally by a very small number of votes, and it very rarely reverses the winner. The reason is mathematical. A recount repeats the count of the same ballots, so any change comes from errors in the first count, such as a misread mark, a stack that was counted twice or a ballot that was missed, and those errors are scattered in both directions and tend to cancel each other. They are seldom large enough to move a lead of more than a few hundred votes in a big race. Studies of statewide recounts have found reversals to be exceptions, not the rule.

That does not make recounts pointless. A recount confirms the count, catches the stray errors and, above all, gives the loser a chance to see the process. In a tight race it is the right procedure. State laws set the thresholds that trigger an automatic recount, which is a useful thing to read before an election, not after.

A recount is the only sporting event where the crowd is hoping for a boring ending.

Verdict: false in both directions. Recounts usually confirm the result with small adjustments. They are valuable because they confirm it in public.

Myth five: "Election-night counts are final"

The claim. The numbers on the screen at midnight are the result. If they change, something is wrong.

The record. Election-night numbers are unofficial. They come from precinct reports and from the early tallies of ballots that officials have had time to process. Official results come after the canvass, the formal review in which election officials reconcile the numbers, count valid late-arriving ballots where state law allows, resolve provisional ballots and verify the totals. A state then certifies the result. Some ballots are always counted later: military and overseas ballots with extended deadlines, provisional ballots that must be checked and mail ballots in states that process them over days.

Which kind of ballot gets counted first differs from state to state, depending on when a state allows its officials to begin processing mail ballots. That means a count can shift, in a predictable direction, as different kinds of ballots come in. A shift in the numbers during the canvass is not evidence of anything. It is the process working as it was designed.

Here is where I speak to my own side. If you want faster results, which is a respectable thing to want, the argument is for changing the rules, for example letting officials process mail ballots earlier or requiring receipt by Election Day, as discussed in Election Day or Election Month, the Case for Tight Mail-Ballot Rules. It is not an argument that a changing count is a crime. And to the other side: a count that moves does not prove that the early numbers were a conspiracy either. Both sides should relax and read the canvass. It is not a thrilling document, but neither is the warranty on a toaster, and you would still check it before blaming the toaster.

Verdict: false. The night's count is a report, not a result.

Myth six: "The popular vote winner becomes President"

The claim. The candidate with the most votes nationwide wins.

The record. Article II, Section 1 and the Twelfth Amendment provide that the President is chosen by electors, and each state has the number of electors equal to its Senators and Representatives. A candidate needs a majority of electors, 270 of 538 under the current allocation of electors. In 1876, 1888, 2000 and 2016, and by some counts in 1824 as well, the candidate who won the most votes nationwide did not win the presidency. The Founders made the choice on purpose, and Hamilton defended the system in Federalist No. 68, a post we read closely in Federalist 68 Read Closely, Hamilton's Defense of How America Picks a President.

I note that conservatives defending the Electoral College should do it on the merits: it forces candidates to build coalitions across many states and respects federalism. They should not pretend the popular vote is irrelevant, because it is the main thing determining each state's electors. And those who favor changing the system have a constitutional route, a constitutional amendment, which is not the same as the interstate compact some states have adopted, a device we discuss in The National Popular Vote Compact Is an End Run Around Article II.

Verdict: false as a statement of law. The President is chosen by electors, and the popular vote winner has lost the presidency more than once.

Myth seven: "Election fraud never happens" (and its twin, "it is everywhere")

The claim, version A. Fraud is a fantasy and anyone who talks about safeguards is lying. Version B. Fraud is rampant and decides elections.

The record. Both versions are wrong, and I will take them in order. Election crimes exist, and they are prosecuted. One well-known example involved a 2018 congressional race in North Carolina's Ninth District, where the state elections board declined to certify the result after evidence emerged of an absentee-ballot operation run by a political operative, and ordered a new election, which was held in 2019. The case shows two things at once. Absentee-ballot fraud is real, and the system detected it, investigated it and corrected it. Those who say fraud never happens must explain that case, and those who say it is everywhere must explain why a system that caught it does not work.

The honest middle is that documented cases exist, they are usually small relative to the number of votes, and the right response is to design safeguards in proportion to the risk. The Carter-Baker Commission said as much in 2005, as we describe in The Case for Photo ID at the Polls, Answered Point by Point Against Its Critics. Nothing in the record supports a claim that fraud, or any other irregularity, decided a presidential election, and this blog does not make one.

Verdict: both versions false. Fraud occurs, it is caught and prosecuted, and safeguards are reasonable. A claim that a whole election was decided by fraud needs evidence a court would accept.

Myth eight: "Electors can vote for anyone they like"

The claim. On the day the Electoral College meets, electors are free agents, and a state cannot make them follow the voters.

The record. The Supreme Court answered this one in Chiafalo v. Washington, decided July 6, 2020, in an opinion by Justice Kagan, with all nine justices agreeing on the judgment. The Court held that a state may require its presidential electors to vote for the candidate who won the state's popular vote, and may penalize an elector who breaks the pledge. The reasoning rests on Article II, Section 1, which gives the states broad power over the "Manner" of appointing electors, and on a long history of electors acting as agents of the voters rather than independent judges. The ruling covered both Washington's fine for faithless electors and a Colorado rule that removed and replaced an elector who would not follow the state's vote.

Some states bind their electors by law and others do not, but the ability of a state to do so is no longer in doubt.

Verdict: false as a rule of law. States may bind their electors, and many do.

What the myths have in common

Look at the list again, and you will notice a pattern. Each myth has a reasonable core. States really do run elections, and they really do differ. Some provisional ballots are rejected. Some localities do let noncitizens vote in local races. Some recounts, in very close races, have mattered. Early counts do change. Presidents have lost the popular vote. Fraud has occurred. Electors have gone off script. In each case, the myth takes something true and stretches it to carry a conclusion the facts will not bear.

That stretching is the common vice of political argument, and it is worth saying that the stretching tends to move in whichever direction helps the person speaking. The cure is a habit: before you repeat a claim about how elections work, find the clause, the statute or the case. The text of the Constitution is at the Constitution page and the glossary at the glossary defines the terms used here, from canvass to certification.

Why the straight story helps conservatives

I will end with an argument that is partly strategic and partly moral. Strategically, a movement that has the facts right wins more arguments. If we say that provisional ballots are always thrown out, someone will produce the statute, and we will lose the audience on the point we actually care about, which is ID and list maintenance. If we say that noncitizens vote legally in federal races, someone will cite Section 611, and the good case for proof of citizenship at registration gets buried with the bad claim.

Morally, the point is simpler. A conservative is someone who believes in the rule of law, and the rule of law starts with knowing what the law is. Truth is not a tactic, it is the entire reason to have a rule book. And the other side's myths are not defeated by our myths. They are defeated by the plain text, read aloud, with the page number.

The case in brief

1. States, not Washington, hold the first power over elections under Article I, Section 4, and Congress has a backstop power it uses sparingly.
2. Provisional ballots are counted when the voter proves eligible (HAVA, 2002), and noncitizens cannot lawfully vote in federal elections (18 U.S.C. 611).
3. Recounts usually confirm results with small changes, and election-night counts are unofficial until the canvass and certification.
4. The President is chosen by electors, the popular vote winner has lost the presidency more than once, and under Chiafalo v. Washington (2020) states may bind their electors.
5. Fraud is real and rare enough that proportionate safeguards are the right answer, and neither "it never happens" nor "it decides everything" survives the record.

What you can do: pick one claim about elections you have heard, find the clause, statute or case behind it on the Constitution page or Congress.gov, and correct it politely with the citation.