[EL] in-person voter fraud Washington 2004 follow up
David A. Schultz
dschultz at gw.hamline.edu
Sun Jul 31 12:26:25 PDT 2011
Pardon a long-winded comment here.
Justin is correct that a serious and objective review of the evidence
reveals that in-person voter fraud is a negligible factor in American
elections. Yet that fact is completely beside the point. The debate
about voter fraud is not one about evidence and facts, but about
political narratives. Claiming massive voter fraud in 2011 is no
different than claims of welfare queens during the 1980s.
The facts are clear are in-person voter fraud. Back in 2008 I was
foolish enough to believe that facts were important. In “Lies, Damn
Lies, and Voter IDs: The Fraud of Voter Fraud,” 1 Harv. L. & Pol. Rev.
1 (2008), and in more detail in Less than Fundamental: The Myth of
Voter Fraud and the Coming of the Second Great Disenfranchisement,
34William Mitchell L. Rev. 484 (2008), I reviewed every credible study
that then existed on voter fraud, finding that the evidence of such a
significant phenomena was non-existent. I foolishly believed that facts
would resolve the issue and also contended that the push for voter ID
legislation was simply part of the second great disenfranchisement. I
recall at least one member of this list-serv penned that I was
“irresponsible” in making this claiming, although I have never
figured out why.
I have since learned that scant evidence of voter fraud*to those who
advocate photo Ids*is not proof that in-person voter fraud is
negligible. Instead, it is the tip of the iceberg*proof or evidence
that were we to have better detection methods (more photo id
requirements) then surely more fraud would be detected. But alas, when
photo Id has been instituted and no additional fraud is revealed,
advocate again assert that the existence of photo Id has hereby deterred
fraud. Wonderful circularity to the logic.
Judge Posner in Crawford parallels voter fraud to littering, contending
that both are difficult to detect.Others, such as Brad Smith (and we
have discussed this issue before) , similarly highlights the few
reported or prosecuted instances of fraud as perhaps indicative of a
more extensive problem (although he does admit that fraud is not
extensive). His parallel is to vehicular moving violations: “[T]he
typical speeding ticket or even DWI is usually indicative of numerous
other, unreported events of the same nature. But surely that is true of
voter fraud as well.”
Both Posner and Smith are wrong. Second, the analogy to vehicular
speeding is inapt. Speeding in a car is a continuous 24/7 activity that
can occur anytime and anywhere. (The same is true about littering)
There is no single detection point or place where people can speed and
therefore with the almost infinite amount of cars driving along almost
infinite roads, it is virtually impossible to detect all instances of
speeding. Thus, the few speed traps that are set up obviously only
detect and capture a small spectrum of all speeding.
However, voting or voter fraud is a discrete activity. It can only
occur at a specific point in time or place and in order to commit fraud
one has to commit it by going through specific point*a voting booth.
Thus, all instances of fraud must go through and exit a single detection
point. To be successful, in person fraud requires either a false
registration, false signature, and tricking an election judge. The
point is that to commit voter fraud one has to get past multiple
detection points or check points. One can speed without every crossing
a detection point (speed trap).
The point here is that the analogy of voter fraud to speeding or
littering is inapt. One can speed or litter almost anytime or anyplace.
This is what detection hard. The few instances detected and prosecuted
are perhaps only a small sample of a larger pattern of speeding and
littering that may exist. In addition, beyond detection and
prosecution, other evidence, such as police using radar guns to detect
speeders but not issue a ticket, or anecdotal statements from drivers
that they speed, may corroborate inferences that it is more prevalent
than prosecution may suggest. With littering, proof can be found along
roadsides and fields across America*the fact that there are cans,
papers, and other refuse there points either to the contests of garbage
cans being knocked over or intentional littering.
One can only vote in person in a finite number of places and within a
finite time. To vote, especially in person, there are several steps and
checkpoints in place. There is in 42 states voter registration before
election day. This is one check. For all 50 states, in-person voting
requires someone to show up, give a name to an election judge and
generally sign a log with which there is a signature match. There may
be other requirements too. What this means is that one has to go to a
specific place to commit fraud and cross past numerous detection or
check points before one can actually submit a fraudulent ballot. One
does not simply have to speed past a law enforcement officer to violate
a motor vehicle law.
Ok so my point? Most arguments asserting voter fraud are circular, lack
serious testable propositions, or are premised on false analogies. But
none of that matters. This is a debate resting on myths and assertions
that really are not empirically grounded and the debate will not be
resolved by appeals to evidence.
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
School of Business
570 Asbury Street
Suite 308
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3098 (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
>>> Justin Levitt 07/31/11 12:58 PM >>>
I'd also be interested in the answer to Rick's question.
I spent the 2007 winter holiday (sigh) looking at every single
allegation of fraud
cited in the /Crawford/ briefs to the Supreme Court. In all of the
spilled ink -- covering a time period spanning 400 million votes in
general elections alone -- I found a total of ten cases where attempts
at impersonation fraud were even /alleged/. One attempt was
definitively thwarted. One involved fraud by a pollworker (tough to
stop no matter what kind of ID is legally required) and another involved
a fraudulent photo ID (again, requiring ID doesn't stop the fake ID).
The other seven -- including the single Washington vote Rick mentions --
were unresolved allegations that might have been real cases, or might
have been clerical error. And I've never heard of any further
investigation of those seven, one way or another. But I'd welcome any
follow-up.
I discussed the Stevens footnote -- and a few other commitments to
truthiness rather than truth -- here
. And
reports on the case that perpetuated the truthiness, here
.
Justin
On 7/31/2011 10:37 AM, Rick Hasen wrote:
> In /Crawford v. Marion County/, Justice Stevens plurality opinion
> contains this in a portion of a footnote:
>
> While the brief indicates that the record evidence of in-person
> fraud was overstated because much of the fraud was actually
> absentee ballot fraud or voter registration fraud, there remain
> scattered instances of in-person voter fraud. For example, after a
> hotly contested gubernatorial election in 2004, Washington
> conducted an investigation of voter fraud and uncovered 19 "ghost
> voters." Borders v. King Cty., No. 05--2--00027--3 (Super. Ct.
> Chelan Cty., Wash., June 6, 2005) (verbatim report of unpublished
> oral decision), 4 Election L. J. 418, 423 (2005). After a partial
> investigation of the ghost voting, one voter was confirmed to have
> committed in-person voting fraud. Le & Nicolosi, Dead Voted in
> Governor's Race, Seattle Post-Intelligencer, Jan. 7, 2005, p. A1.
>
> Putting aside that the brief cites only a single instance of possible
> in-person voter fraud (hardly massive), the evidence for this appears
> to be a single sentence in the Le & Nicolosi article
> :
>
> The P-I review found eight people who died weeks before absentee
> ballots were mailed out, between Oct. 13 and 15, but were credited
> with voting in King County. Among them was an 81-year-old Seattle
> woman who died in August but is recorded as having voted at the
polls.
>
>
> Did anyone ever follow up to see what happened with this 81-year old
> woman? Many of these cases turn out to be someone signing on the
> wrong line. Did anyone ever track down the poll book to see if
> someone signed the woman's name?
>
> Thanks for any leads.
>
>
>
>
> --
> Rick Hasen
> Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org
>
>
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--
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA 90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321
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