[EL] in-person voter fraud Washington 2004 follow up
Justin Levitt
levittj at lls.edu
Sun Jul 31 16:08:07 PDT 2011
I know people may be getting plenty tired of this thread. So a warning
-- below is a response to Mr. Zall's email, about the specific incidents
in New Mexico in 2004. If you're uninterested, delete away.
***
Actually, I read all of Mr. Zall's brief, and the background sources
besides. And then I looked through news reports on my own, to try to
find any additional available details.
For what it's worth, I think I gave Mr. Zall credit for six of the ten
-- total -- incidents of specific but unproven allegations of votes cast
in others' names at the
polls. So yes, the case for impersonation fraud at the polls is, from
what I can tell, based in large part on Mr. Zall's six incidents.
The six incidents, as far as I can tell, are as follows:
- Dwight Adkins, 2004. I read (and cited to) his motion to intervene in
the /Santillanes/ case, not merely the court's report of that motion.
In the motion, he says that he was told that someone had voted in his
place, and that his ballot would not be counted. I understand that
there was (and cited to) similar testimony before the House in 2006.
What I've never seen is any documentation that someone trying to track
down the incident actually reviewed the signature page of the pollbook.
As I've repeatedly documented, and Vince mentioned earlier, there are
ample cases where investigators _did_ return to the pollbooks, and found
that someone had signed on the wrong line. It's possible that someone
was impersonating Mr. Adkins (which is why it's one of the ten alleged
incidents). But it's also possible that this was an unfortunate error,
and that Mr. Adkins was turned away without cause ... and without
fraud. Mr. Adkins does not say why he knows that fraud was involved,
other than a pollworker told him that someone had already signed in next
to his name.
- Rose-Mary McGee, 2004. I counted her among the ten as well, for the
same reasons. I was not able to get a copy of the pollbook page she
presented to the House committee, though I'd be eager to see it -- I'm
actually trying to base my conclusions on facts. So if anyone has a
copy, I'd welcome it. I will note that someone else signing on her line
would explain both the mismatched signature and the "mis"spelling.
What I'd be looking for is any other McGee-like name of an actual voter,
before or after Rosemary, that might account for a misplaced signature.
(If someone signs on my line in the pollbook, and signs "Justine
Lewitt", that might indicate fraud -- or it might indicate that there's
a voter named Justine Lewitt who signed in the wrong place.) Again,
without more, I acknowledge that this might reflect fraud ... or it
might not.
- Frank Sanchez, 2004. Same thing -- he was told that someone had
signed in on his line of the pollbook. I've not seen any further
information about him, or about the pollbook page.
- Kim Wistrand, Stephanie Ortiz, Heather Philpot, 2004. The only place
I could find any information about any of these voters was in Vickie
Perea's candidate statement in the Albuquerque Tribune, October 10,
2006, and in Ms. Perea's testimony before the House Admin. Committee.
The allegations were similar -- all were apparently told that someone
had signed in on their line of the pollbook. I've never found any
further details about any of these cases, but would welcome them, just
as above.
To be perfectly clear, it's extremely unfortunate that these six
individuals were not permitted to vote; I think it's a real shame that
any eligible voter should be unable to vote (which is part of why I
question the strictest ID rules, based on the math: even the most
conservative stats indicate that far more than six people will be
effectively shut out of the system). These six may all represent
legitimate cases of impersonation fraud at the polls -- six of the very
few ever to have even been reported. But given run-of-the-mill activity
at the polls, including signatures on the wrong lines of pollbooks, it's
also possible that some or all of the six represent honest mistake. And
since it's possible to actually look at the pollbooks, I keep pressing
for the evidence that will help sort out which is which. That's not
just important for the record -- it's important for the policy
response. If all of these incidents have to do with signing in on the
wrong line of a pollbook, then we should be spending a whole lot more
time on fixing the pollbook process than we're spending on strict ID
rules...
Justin
On 7/31/2011 2:57 PM, BZall at aol.com wrote:
> 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 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 (10^th 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
>> http://law.uci.edu/faculty/page1_r_hasen.html
>> http://electionlawblog.org
>>
>>
>> _______________________________________________
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>> Law-election at department-lists.uci.edu
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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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--
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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