[EL] in-person voter fraud Washington 2004 follow up
Smith, Brad
BSmith at law.capital.edu
Sun Jul 31 15:27:25 PDT 2011
That's not really right, because someone would have to know of the impersonation before anyone would look; the idea behind impersonation is that it is often unknown.
It strikes me as pretty obvious that a) there is some level of voter fraud; and b) voter fraud which is actually caught is not the entire universe of voter fraud.
I understand why exaggerated claims voter fraud are put forth. But I do not for the life of me understand why so much energy has gone into resisting these two fairly obvious facts about voter fraud, and I think that trying to resist them has damaged much credibility; and thus given credibility to claims that voter fraud is a considerable problem.
I comment on this only because David cited to me in this conversation - not to anything I've published but to a post on this list, responding to a claim, once again, that the universe of voter fraud is that which is actually caught. I know of no crime in which all incidents are caught.
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317
http://www.law.capital.edu/Faculty/Bios/bsmith.asp
________________________________
From: law-election-bounces at department-lists.uci.edu on behalf of Justin Levitt
Sent: Sun 7/31/2011 4:14 PM
To: David A. Schultz
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] in-person voter fraud Washington 2004 follow up
One related point about the speeding and littering: these examples point
out that prosecution rates seldom reflect the true incidence of the
underlying activity. As a general proposition, this is certainly true.
But as David points out, there is credible tangible evidence that
speeding and littering occur with substantial frequency, despite the
fact that relatively few cases are prosecuted. It's not difficult to
find evidence of speeding and littering, prosecuted or not.
Impersonating someone else at the polls leaves a paper trail -- the
pollbook itself. In that respect, it's like littering -- it may be
difficult (though not impossible) to pin down who's done it, but it
shouldn't be difficult to prove that it happens. Yet despite that paper
trail -- and despite what seems to be quite a bit of incentive and
capacity to publicize credible reports -- the number of even unproven
allegations has been infinitesimal. It's like claiming that there's a
rash of littering going on ... without the ability to find any actual
litter.
Justin
On 7/31/2011 12:26 PM, David A. Schultz wrote:
> 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 <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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