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Voter fraud includes unlawful practices concerning voter registration and ballot correction. When state legislatures are silent as to procedures for absentee ballot curing or provide specific rules governing that curing, neither counties nor courts may create a cure right where one does not exist, may not modify the law on curing, and certainly cannot engage in creating consent orders with the force of law that are inconsistent with the orders of other similarly situated counties.

The DOJ has ceded substantial discretion concerning voter suppression to the Civil Rights Division. Since the Bush Administration, DOJ leadership has determined that using the Election Crimes Branch to prosecute fraudulent voter registration, including mail-in ballot fraud, was too politically costly.”* The Criminal Division’s Federal Prosecution of Election Offenses handbook advised that schemes that violated equal protection constituted “voter suppression” prosecutable under 18 U.S. Code § 241 as part of the guidelines for which the department’s criminal prosecutors were trained.” State-based investigations of election crimes are supposed to be referred to the Public Integrity Section for review. Historically, 18 U.S. Code § 241 (conspiracy against rights) was used as a basis for investigating state officials whose statements or orders violated the equal protection rights of voters or deliberately misinformed voters concerning the eligibility of their ballots.

Nevertheless, the Department of Justice has formalized the Civil Rights Division’s (as opposed to the Criminal Division’s) jurisdiction over 18 U.S. Code § 241 investigations and prosecutions. The Criminal Division is no longer involved in consultation or review of 18 U.S. Code § 241 investigations.®° The Criminal Division has accordingly advised states that “[i]n the case of a crime of violence or intimidation,” they should “call 911 immediately and before contacting federal authorities” because “[s]tate and local police have primary jurisdiction over polling places,”*! despite clearly applicable federal law.

This is a mistake. With respect to the 2020 presidential election, there were no DOJ investigations of the appropriateness or lawfulness of state election guidance. Consider the state of Pennsylvania. The Secretary of State sent guidance to the counties stating that:

This revised guidance addresses the issuance, voting and examination

of provisional ballots under the Election Code. Provisional ballots were originally mandated by section 302 of the Help America Vote Act of 2002 (HAVA). Provisional ballot amendments included in Act 77 of 2019 went into effect for the 2020 Primary election. Provisional ballot amendments included in Act 12 of 2020 go into effect for the first time on November 3, 2020.°?

HAVA, however, mandates provisional ballots only for eligible voters who were

not on a state’s voter registration list.*? It does not apply to those who registered for mail-in voting but whose ballots were rejected due to some form of spoliation.