O'Keefe and Higby cannot 'test' Minnesota laws by breaking them

By Adele Rutherford · Reporting from Atlanta · October 28, 2026

James O'Keefe and Cam Higby face felony charges for misrepresenting their identities at polling places, a stunt that confuses investigative journalism with criminal identity theft.

James O'Keefe and Cam Higby are wrong. They believe that the desire to "expose" a vulnerability grants them a license to commit identity theft. In a court of law, an investigative motive does not erase a criminal act. By providing the names of registered voters to election officials under false pretenses, they did not test the law. They broke it.

The rules of the vouching process

To understand the crime, one must understand the process. Minnesota law allows unregistered voters to register on Election Day through a system called vouching. As reported by MPR News, this requires a registered voter in the precinct to sign an oath confirming an unregistered voter's address. A registered voter in Minnesota can vouch for up to eight people.

The person being vouched for must also sign an oath of identity and eligibility. They must provide a Minnesota driver's license number, an identification card number, or the last four digits of their Social Security number, according to Newsday. This is a specific legal mechanism designed to ensure access for those without current proof of address.

The system is not a wide-open door. Newsday and The Guardian both note that fewer than 0.6% of votes cast in the November 2024 election used the vouching process. It is a narrow exception to a general rule. When O'Keefe and Higby entered polling places on Aug. 11, they did not seek to use this exception legally. They sought to simulate its failure by using the identities of others.

The fallacy of the investigative license

The defense will rely on the absence of a cast ballot. O'Keefe Media Group stated that the men did not cast ballots. They claim the stunt was an "intentionally extreme scenario" to expose the "lunacy" of the system. Cam Higby wrote on X that this is "lawfare" and "FASCISM."

An ablest advocate would argue that without a ballot, there is no "unlawful voting." They would say the defendants were journalists conducting a simulation. They would argue that the state is punishing a performance rather than a fraud.

This argument fails because it ignores the statutory nature of identity theft. Hennepin County Attorney Mary Moriarty noted that you cannot give someone else's name and misrepresent yourself during the process. The crime occurs at the moment of misrepresentation. The law does not require a ballot to be cast for the act of impersonating a voter to be unlawful.

Moriarty was correct to state that there is no such thing as an undercover investigation in a polling place. If a "journalist" can steal a citizen's identity to test a government process, then any person can steal an identity and call it journalism. A rule that only applies when the actor is not a "provocateur" is not a rule at all.

A career built on false pretenses

This conduct is not an isolated experiment. It is a method. The current charges mirror the mechanism in United States v. James O'Keefe. In that matter, the shared mechanism was the use of false pretenses and misrepresentation of identity to gain unauthorized access to a restricted space for the purpose of a political sting.

We see this pattern in James O'Keefe's misdemeanor charge in Louisiana (2010). In that instance, O'Keefe posed as a telephone repairman to gain access to a U.S. senator's office. He pleaded guilty to entering a federal property under false pretenses. The target changed from a senator's office to a polling place, but the tool remained the same: the lie.

The defendants wore "Muslim garb" and used fake accents to create a video titled "I Wore Burqa To EXPOSE Election FRAUD In Minneapolis," as reported by ABC News. They used names of deceased residents and one person who had already voted. This was not a test of the vouching law. It was a test of how much deception a poll worker would tolerate before noticing a fraud.

Each count of unlawful voting and identity theft carries a maximum penalty of five years in prison, according to ABC News. While state records show these specific interference charges have been used only once since 2021, the rarity of the charge does not make the conduct legal. The state is not punishing the costumes or the accents. It is punishing the theft of identities.

The defendants will likely move to dismiss these charges by claiming First Amendment protection. They will argue that their actions were performative speech. However, the First Amendment does not protect the act of misidentifying oneself to a government official to initiate a fraudulent legal process.

Mary Moriarty will successfully defend these indictments. The statutory prohibition against misidentifying oneself to election judges is strict. The intent to "investigate" does not override the state's interest in protecting the identity of its voters. O'Keefe and Higby treated the polling place as a stage, but the law treats it as a sanctuary of process. They are now subject to the results of that process.

O'Keefe and Higby cannot 'test' Minnesota laws by breaking them

The rules of the vouching process

The fallacy of the investigative license

A career built on false pretenses

Sources