[EL] in-person voter fraud Washington 2004 follow up
BZall at aol.com
BZall at aol.com
Sun Jul 31 14:57:23 PDT 2011
I did not track down what happened to the woman in that case.
I did, however, write one of the briefs that Justin claims to have [sigh]
perpetuated truthiness in Crawford.
_http://moritzlaw.osu.edu/electionlaw/litigation/documents/Rokita-BriefamicuscuriaofAmUnity.pdf_
(http://moritzlaw.osu.edu/electionlaw/litigation/documents/Rokita-BriefamicuscuriaofAmUnity.pdf)
I remember reading Justin's report for Brennan during the case and just
laughing at its boldness and absurdity in defining away what it didn't want
to see.
If I may, a quick example, just from the first paragraph of Justin's
"truthiness" report on my brief. Here is what Justin's report said:
“Some Albuquerque frauds appear plainly in the case file in Women Voters
of Albuquerque
/Bernalillo County, Inc., v. Santillanes, 506 F.Supp.2d 598 (D.N.M. 2007),
. . . another challenge
to voter identification requirements. In Santillanes, preliminary motions
and congressional
testimony reveal that Dwight Adkins had his vote impersonated; his vote
was not counted
because the impersonator had voted first. The same was true for Rosemary
McGee, whose
impersonator not only voted earlier, but mis-spelled her name. At least
four other such
impersonations were detected in that election.”
(p. 3; see also p. 8-12, 17, 22, 27-28)
No specific documents were cited in support of the allegation; documents
in the cited court case
reveal only a cursory reference to Mr. Adkins, without more detail.109
So, no specific documents were cited in the quoted paragraph? How could
that be? Might it, perhaps, be because he quoted from the Summary of
Argument? After all, even Justin's report noted at the end of the quoted paragraph
that there are ten pages of discussion and citations.
If you'll indulge me by reading a bit of the actual brief, rather than
truncated meta-analysis, let's take a look at some of the material in the brief
to see if there were, in fact, "specific documents cited in support of the
allegation" or "documents in the cited court case" which might "reveal"
more than "a cursory reference of Mr. Adkins" with "more detail?"
I. “IN-PERSON VOTER IMPERSONATION FRAUD” DOES EXIST.
Petitioners, for example, assert that “there is no evidence whatsoever
that a single person in Indiana has ever come to the polls on Election Day and
tried to vote under the name of a person who already had voted.” IBP Br.,
at 43. Perhaps that is true about evidence in Indiana, “for remember that
it is difficult to detect.” Crawford, 472 F.3d at 954. It is not true
elsewhere, where voter impersonation is a matter of public record.
The Seventh Circuit said that voter impersonation would be likely detected
when “the impersonated person . . . voted already when the impersonator
arrived and tried to vote in his name.” 472 F.3d at 953. This is not the only
way in which voter impersonation could be detected, and likely represents
a lesser concern because the real vote itself might not be lost.
In fact, a more troubling version happened – repeatedly – in Albuquerque,
New Mexico, in 2004: the impersonated, “real” persons arrived and could
not vote after the impersonators had voted earlier. The difference between
the two detection methods is that, in Albuquerque, the miscreants were long
gone, and the votes cast by the actual voter were not counted. There could
be no prosecution, but the harm to the individual voter victims is
apparent.
Amicus does not suggest that Albuquerque and New Mexico are particularly
prone to election fraud. This is simply the first place amicus applied its
limited research resources to the available cases.
Both Petitioners cite in passing Women Voters of Albuquerque/Bernalilo
County, Inc., v. Santillanes, 506 F.Supp.2d 598 (D.N.M. 2007), appeal
pending, No. 07-2067 (10th Cir. 2007)._[1]_
(aoldb://mail/write/template.htm#_ftn1) Crawford Br., at 48; IDP Br., at 49. Petitioners cite Santillanes for
the proposition that voter impersonation does not exist. Id. Yet at least
one clear instance of voter impersonation is referenced in Santillanes, but
the opinion must be supplemented to disclose the impersonation.
Judge Armijo noted in Santillanes that “[w]ith respect to the City's
narrower interest in preventing people from impersonating another voter at the
polls in order to steal their vote, there is no admissible evidence in the
record that such voter impersonation fraud has occurred with any frequency
in past municipal elections.” 506 F.Supp.2d at 637 (emphasis added). She
did note that the ordinance in that case was stimulated, at least in part, by
reports of such fraud in the 2004 Presidential election, but said that the
details of such reports had not been presented to her. Id.
One reason for the lack of “evidence in the record” is that Judge Armijo
did not permit such evidence to be presented to her. In Footnote 3 of the
decision, Judge Armijo notes that she denied a motion to intervene by, inter
alia, Dwight Adkins. 506 F.Supp.2d at 608 n. 3. In her unpublished
memorandum opinion denying intervention, Judge Armijo found that the intervention
motion was not filed timely. American Civil Liberties Union of New Mexico
v. Santillanes, No. 1:05-cv-01136-MCA-WDS, Doc. 42, slip op., at 11 (D.N.M.,
July 12, 2006)._[2]_ (aoldb://mail/write/template.htm#_ftn2)
Judge Armijo’s decision notes only that Dwight Adkins, one of the
individuals who moved to intervene, “claims he was deprived of his vote in 2004.”
Id., at 7. In his Motion to Intervene, however, Mr. Adkins stated that “
[i]n the 2004 election, his vote was stolen by someone who voted in his place.
Mr. Adkins was ‘allowed’ to cast a provisional ballot, but he was
informed that it was not counted.” Santillanes, No. 1:05-cv-01136-MCA-WDS, Doc.
33, at 3 (D.N.M. June 13, 2006).
More detail is available in Congressional testimony. A few days after
filing his Motion to Intervene, Mr. Adkins’s counsel explained to the Committee
on House Administration that Mr. Adkins sought to intervene because “[h]e
was not allowed to vote when he appeared at his polling place because
someone had voted fraudulently in his place. His ‘provisional ballot’ was cast
and denied on the basis, he was told, that he had already voted. Rosemary
McGee of Albuquerque suffered the same fate.” Comm. on House Administration,
Testimony of Mr. Patrick Rogers, June 22, 2006, available at
http://cha.house.gov/index.php?option=com_content&
task=view&id=75&Itemid=41.
Mrs. Vicki Perea, a former Albuquerque City Council member, also
testified: “Rosemary McGee is a Bernalillo County voter who tried to vote on
Election Day in 2004, only to find that someone else had signed the voting roster
in her place earlier in the day (and spelled her name wrong).” Comm. on
House Administration, Testimony of Mrs. Vicki Perea, June 22, 2006, available
at
http://cha.house.gov/index.php?option=com_content&task=view&id=102&Itemid=41. Mrs. Perea showed the voting roster to the Committee: “You can see
the voting roster on this slide, with Rosemary's actual signature on the
bottom, and the signature of the person who voted in her place at the top.” Id.
Another report indicates that Ms. McGee appeared at the polling place at
3:00PM and found that the impersonator had voted at 7:00AM the same day.
Prof. John Lott, “John Fund on the Voting Process in New Mexico,” November
10, 2004, available at http://johnrlott.blogspot.com/2004/11/john-fund-on-
voting-process-in-new.html. The time is important, because under New
Mexico rules, the earlier, impostor’s vote was counted, not the later “real”
vote. Id.
It is also important to note that not only were the signatures visibly
different, but the voter’s name was mis-spelled. Whatever safeguards were in
place to protect against impersonation did not work.
Nor were Mr. Adkins and Ms. McGee the only persons whose votes were
physically impersonated by in-person fraud that day; at least four other
Albuquerque voters were impersonated. Vickie Perea, “Candidate for State Treasurer,”
Albuquerque Tribune, October 10, 2006, available at
http://www.abqtrib.com/news/2006/oct/10/vickie-perea-republican/. These were just the frauds
which were detected, and all these detections were after the fact. No
prosecutions resulted.
____________________________________
_[1]_ (aoldb://mail/write/template.htm#_ftnref1) Santillanes involves the
same issue as this case – the constitutionality of a voter identification
requirement – and Judge Armijo distinguished the lower court opinions here
in striking down a city’s voter ID requirement. 506 F.Supp.2d at 638.
_[2]_ (aoldb://mail/write/template.htm#_ftnref2) Curiously, this motion
and Order do not appear in the comprehensive listing of case materials made
publicly available by the Moritz School of Law at The Ohio State University.
See, e.g.,
http://moritzlaw.osu.edu/electionlaw/litigation/aclunewmexico.php. They are available, however, through PACER.
I could go on, and the brief does so, but this is sufficient to point out
that Justin's Brennan report is superficial at best, and its conclusion are
not, in fact, as solid as they are touted. Claiming that "no documents were
cited" is clearly wrong, as is the claim that documents "in the court
case" only refer to Mr. Adkins in a cursory way. Would those be the documents
that were not permitted in the record? What about the specific testimony
under oath to Congress? And the idea that the lack of prosecution is
tantamount to a failure of proof, much less a demonstration that the fraud never
took place, simply doesn't match the realities of legal practice. Perhaps you
recall that this case was in one of the Districts where the Bush Justice
Department got mad at the local US Attorney for failing to prosecute claims
of voter fraud? David Iglesias told the NYT he didn't prosecute a clear case
of voter registration fraud because the person "did it for the money" not
to influence the election.
Perhaps it is true that voter fraud is rare, particularly in-person voter
impersonation fraud. But that is not the standard here, just as has been
said before. Justice Stevens, no stranger to these questions, said in Purcell
v. Gonzalez, (2006) that: “Confidence in the integrity of our electoral
processes is essential to the functioning of our participatory democracy.
Voter fraud drives honest citizens out of the democratic process and breeds
distrust of our government. Voters who fear their legitimate votes will be
outweighed by fraudulent ones will feel disenfranchised.” (That case is
returning to the Court soon after the 9th Circuit's en banc review of
Gonzalez/ITC.)
It would be nice if we could all reassure the American people that voter
fraud IS, in fact, rare. But confirmation bias won't provide sufficient
grounds for analysis, when only a little more work with a more open mind might
come to a different result. Truthiness, indeed.
Barnaby Zall
Of Counsel
Weinberg, Jacobs & Tolani, LLP
11300 Rockville Pike, Suite 1200
Rockville, MD 20852
301-231-6943 (direct dial)
_www.wjlaw.com_ (http://www.wj/)
bzall at aol.com
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In a message dated 7/31/2011 1:59:00 P.M. Eastern Daylight Time,
levittj at lls.edu writes:
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_
(http://www.brennancenter.org/page/-/Democracy/Analysis%20of%20Crawford%20Allegations.pdf) 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_
(http://www.brennancenter.org/blog/archives/just_the_facts/) . And reports on the case that perpetuated the
truthiness, _here_
(http://www.brennancenter.org/blog/archives/crawford_just_the_facts_ii/) .
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_
(http://www.seattlepi.com/default/article/Dead-voted-in-governor-s-race-1163612.php#page-1) :
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_ (mailto:rhasen at law.uci.edu)
_http://law.uci.edu/faculty/page1_r_hasen.html_
(http://law.uci.edu/faculty/page1_r_hasen.html)
_http://electionlawblog.org_ (http://electionlawblog.org/)
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--
Justin Levitt
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Loyola Law School | Los Angeles
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