[EL] in-person voter fraud Washington 2004 follow up
Lorraine Minnite
lminnite at gmail.com
Sun Jul 31 20:45:07 PDT 2011
Let's try this: a voter goes to the polls to vote only to find someone has
already voted in his name. What's the explanation?
a) fraud by another person (impersonation fraud, otherwise known as the von
Spakovsky Indicator)
b) fraud by another person assisted by the clerk
c) voter error (needs new glasses)
d) mistake by the clerk who told the voter's daughter to sign in on the
wrong line (by his name, which was just below hers)
Or this: after an election, a newspaper reporter compares the number of
people who signed in with the number of ballots counted in a precinct: they
don't match. Of course you'd need to know which number is larger - for the
sake of argument, let's say the number of ballots counted is larger than the
number of people who signed in. What's the explanation?
a) fraudulent voters slipped by the clerks and somehow cast ballots
b) clerk fraud
c) somebody who has access to the count stuffed the ballot box
d) mistakes by the clerks (they let people vote without signing in because
they'd been working for 10 hours straight and the line was out the door)
e) incompetent election workers (the clerks let people vote without signing
in because they missed that part of the two-hour training)
Or this: an election is so close it triggers a recount, and then litigation;
a judge finds that 1,401 people with felony convictions whose voting rights
had not yet been restored cast illegal ballots. What's the explanation?
a) fraud by these voters
b) fraud by election officials or the clerks who facilitated the illegal
voting
c) mistakes by the voters - they were unaware of the fact that they were
ineligible to vote while on parole
d) mistakes by the clerks who mailed absentee ballots to these voters, along
with a reminder that it is the duty of every citizen to vote
e) incompetent election administration
There could be other explanations for any of these not-so-hypothetical
happenings. The point is there are more than one (fraud!) credible
explanation for the irregularities, and reasoned thinking about this issue
should reflect that. Instead of jumping on the merry-go-round of discussion
about the impossibility of ever knowing anything about how much voter fraud
there is, I'd like to shift this pointless exercise in another direction.
What do we know about the degree of administrative error and bureaucratic
incompetence in U.S. elections? Why do we not expect human error to play a
role in generating election irregularities? Are we to believe that not a
single mistake is ever made by the millions of voters and hundreds of
thousands of people who work for state and local government on a federal
election day? This is absurd. When the federal government went hunting for
voter fraud under the Bush Administration, they found the statistical
equivalent of nothing. There were more violations of the nation's migratory
bird laws over the same period than there were cases of voter fraud. I
don't know because I'm not an outdoors person and I don't know how wildlife
investigators might go about doing their job, but I have to believe it's
hard to find migratory bird law violators.
The failure to even consider the most obvious explanation for why column A
and column B don't match, etc. makes the politics of fraud allegations all
the more transparent. Audits would help us better understand what goes
wrong on election day. And they won't be pretty.
Lori Minnite
On Sun, Jul 31, 2011 at 7:03 PM, Justin Levitt <levittj at lls.edu> wrote:
> Actually, I don't disagree with either a) or b).
>
> I _do_ think that the order of magnitude of impersonation fraud is
> important, particularly because it's been the primary ostensible rationale
> for supporting new and restrictive laws, in legislatures and in the courts.
> I agree that individual votes are sacred. And if there's a policy that
> stops lots of actual fraud without significant difficulty for actual
> eligible voters, I'm generally for it. Conversely, if there's a policy that
> present significant difficulty for actual eligible voters without stopping
> lots of actual fraud, I think it's a really bad idea. (And if there's proof
> of that significant difficulty, I think it's also unconstitutional.)
>
> To the sole point of the need to know about impersonation before anyone
> would look, I'll respectfully disagree. First, we have cases in which
> people have suspected fraud, reviewed the underlying documentation, and
> found mistake rather than fraud. So we know that it's possible to check the
> claims. Is it possible to check to see if there's fraud beyond the
> allegations that exist? Sure. It's entirely possible to go back through
> the pollbooks for any sample jurisdiction where people are deathly afraid of
> fraud, identify potential wrongdoing, and attempt to track the potential to
> see if the source is fraud or mistake. In contested elections, the
> contesting party has all the incentive in the world to do this. And media
> organizations regularly review election records. Audits occur in all sorts
> of other enterprises all the time, even without advance knowledge of
> wrongdoing, to get a sense of whether wrongdoing is occurring. And where
> audits _have_ been done, the allegations of impersonation fraud come up
> largely empty.
>
> Justin
>
> 7/31/2011 3:27 PM, Smith, Brad wrote:
>
> 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
> >>
> >>
> >> _______________________________________________
> >> Law-election mailing list
> >> Law-election at department-lists.uci.edu
> >> http://department-lists.uci.edu/mailman/listinfo/law-election
>
> --
> 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 90015213-736-7417justin.levitt at lls.edussrn.com/author=698321
>
>
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