[EL] Turnout

Thu Feb 16 10:09:35 PST 2012

We also shouldn't let the "even miniscule effects can affect photo
finish races" be the focus of the discussion.  The impact is greater, as
Justin eluded to, when it comes to voter access.  Preventing voters,
particularly first-time voters from traditionally disadvantaged
communities, could potentially have long-term implications on civic
participation among certain communities that could lead to further
isolation from the democratic process and an absence of key voices for
policies that benefit disadvantaged communities.  This just adds another
barrier that continues to keep certain communities powerless and can
lead to policies that further, as oppose to lessen, the opportunity
divide in this nation.  That's what we should be focusing on with
regards to photo ID laws. The horse-race, while obviously the sexy topic
during an election year, isn't secondary to this point.  

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick
Hasen
Sent: Thursday, February 16, 2012 11:10 AM
To: Justin Levitt
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Turnout

Justin,

I completely agree with you (and argue in the book chapter) that even
minuscule effects can affect photo finish races, and that based upon
what we know about the relative effects of voter id on rates of voter
fraud and voter participation, the tougher state voter id laws should be
repealed.  I spell out other negative consequences of such laws too for
the overall health of the election system.

But I do think it is  important not to exaggerate the size of the
effects of to casually extrapolate effects on turnout based on either
intent or the number of people potentially affected by a legal change.

Rick

On 2/16/2012 9:04 AM, Justin Levitt wrote: 

As Rick knows, I agree completely
<http://www.brennancenter.org/blog/archives/still_jumping_to_conclusions
/>  that isolating the effect of one particular law on turnout is
exceptionally difficult, and leads to overstated claims.  And that we
need better data about the real impact of policy proposals, which means
better data about the status quo. 

But I'm not sure I agree with the implication that even if turnout is
only affected on the margin, that the "effects" of a policy are
therefore "minuscule," even though that's a meme that's easy to get
sucked in to in the heat of the horse-race.  (For what it's worth, I
suspect it's an implication that Rick doesn't agree with either.)
Incremental turnout change is only one measure of a functioning election
system.

Some "minuscule" turnout effects can, will, and do change the result of
photo-finish races.  

Turnout effects also capture only the relative impact of policy on
people who voted last time, and completely ignore the impact on eligible
first-time electors or the incremental impact on those who have not
recently voted.  (And as he pointed out in a post two days ago
<http://electionlawblog.org/?p=29890> , the fact that 51 million
citizens are unregistered has very little to do with turnout (most of
the unregistered didn't vote in the previous election), but is a fact of
rather momentous significance, not to be missed
<http://electionlawblog.org/?p=29890> .)  

And finally, for any individual voter (or, for that matter, for election
administrators), the effects of a policy may be quite substantial, even
if the turnout needle doesn't move much overall.  That's why policies
that are unjustified by real need should be questioned, even if the
impact on turnout is comparatively small.  A law preventing all
individuals named "Justin Levitt" from voting will have a minuscule
effect on turnout (though I understand some might argue that it serves a
real need).  But that's not the only relevant metric, and sometimes not
even the most important one.

Justin

On 2/16/2012 8:36 AM, Rick Hasen wrote: 

How many voters actually deterred by new Republican voting laws?
<http://electionlawblog.org/?p=29665>  

Posted on February 16, 2012 8:30 am
<http://electionlawblog.org/?p=29665>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

Regular readers of this blog know that I believe that Republican claims
of a serious problem with voter impersonation fraud (used to justify
voter identification laws) are bogus. As I explain in the Fraudulent
Fraud Squad sneak preview
<http://www.amazon.com/Fraudulent-Fraud-Squad-Understanding-ebook/dp/B00
795X5XI/ref=zg_bs_157417011_9> of my forthcoming book, The Voting Wars
<http://amzn.to/y22ZTv> , many Republican legislators and political
operatives support voter i.d. laws for two purposes: first, to depress
Democratic turnout, and second to gin up the base.  On this second
point, consider this quote (included in Fraudulent Fraud Squad) from a
Republican operative in New Mexico to U.S. Attorney David Iglesias
urging an indictment of an ACORN employee before the next election:

	I believe the [voter] ID issue should be used (now) at all
levels-federal, state legislative races and Heather [Wilson]'s race. . .
. You are not going to find a better wedge issue. . . . I've got to
believe the [voter] ID issue would do Heather more good than another ad
talking about how much federal taxpayer money she has put into the
(state) education system and social security. . . . This is the single
best wedge issue, ever in NM. We will not have this opportunity again. .
. . Today, we expect to file a new Public Records lawsuit, by 3
Republican legislators, demanding the Bernalillo county clerk locate and
produce (before Oct 15) ALL of the registrations signed by the ACORN
employee.

Iglesias did not bring that indictment as was sacked for his failure to
pursue bogus voter fraud claims.

But there's another side to the issue of voter identification laws, and
more broadly to claims on the left of "voter suppression."
Democrats/those on the left sometimes inflate the potential negative
effect of voter identification and other laws on voter turnout,
especially among poor and minority voters.  Even though it is clear that
some Republicans are motivated to pass these laws in an effort to
suppress likely Democratic turnout, some of those efforts are
counterproductive and even when such efforts work the effects seem
likely to be small.  Further, just as Republicans use the scare of voter
id laws as a wedge issue to boost Republican turnout, Democrats use the
scare of voter suppression to boost Democratic turnout. Check out the
Donna Brazile fundraising letter excerpted in my chapter.

In my recent chair lecture based on the forthcoming book, I include is a
set of slides showing how the Brennan Center's press release
<http://www.brennancenter.org/content/resource/study_new_voting_restrict
ions_may_affect_more_than_five_million/>  about its report
<http://www.brennancenter.org/page/-/Democracy/VRE/Brennan_Voting_Law_V1
0.pdf>  on new GOP-backed voter laws was transformed by those on the
left.  The press release was headlined "Study: New Voting Restrictions
May Affect More than 5 Million."  The release and the report are
cautious in saying "may" and "could" about the 5 million figure but the
left ran with the study as evidence of voter suppression and the GOP
"War on Voting." For example, a Daily Kos diarist had a headline
<http://www.dailykos.com/story/2011/10/27/1030459/-5-Million-Voters-have
-been-targeted-by-the-GOP-school-of-Election-Engineering> : "5 Million
Voters Have Been Targeted by GOP School of Election Electioneering" and
Rolling Stone had a headline
<http://www.rollingstone.com/politics/blogs/national-affairs/gop-war-on-
voting-new-laws-could-block-five-million-from-polls-20111003> : "GOP War
on Voting: New Laws Could Block 5 Million from Polls."

But it seems that social science has a lot of work to  do now to track
whether voting laws passed by Republican legislatures actually depress
much turnout.  There's been some work on voter id laws, the best of
which shows likely a very small effect, but very hard to measure.
There's too much work like a recent NPR report
<http://electionlawblog.org/?p=28855>  (not done by the excellent Pam
Fessler) which casually extrapolated from the number of voters currently
lacking identification in states with new id laws to conclusions about
how the new laws would ultimately affect voter turnout.

My book will give illustrations of other examples where the effects had
to be minuscule, as in the New Hampshire phone jamming case. But some of
the other areas are ripe for study.  For example, from the Brennan
Center report's executive summary
<http://brennan.3cdn.net/34876f1cabd6d0e252_kwm6id7l7.pdf>  explaining
how they got to their 5 million person figure:

	5. One to two million voters who voted in 2008 on days
eliminated under new laws rolling back early voting. The early voting
period was cut by half or more in three states (Florida, Georgia and
Ohio). In 2008, nearly 8 million Americans voted early in these states.
An estimated 1 to 2 million voted on days eliminated by these new laws.

Many of these voters who voted on days eliminated by the new laws will
simply vote on a different early voting day, vote by absentee (if
allowed), or vote on election day.  It would be nice to have a handle on
how turnout actually is affected by these new voting laws It is likely
that far fewer than one to two million people who voted on election day
in 2008 won't vote in 2012 because of the elimination of some early
voting days.  Turnout may go down in this election, especially if
Democrats are not as enthused to vote in 2012 as they were in 2008, but
that will have nothing to do with the elimination of early voting days.
So it is important to be careful when drawing conclusions about turnout
and election laws (just as when then Indiana- SOS Rokita made the
completely unsubstantiated claim that the state's new voter id laws
caused turnout to go up in 2008.).

In short, we need to be honest about what we know, and what we don't
know, about the effects of these new laws on voter turnout.  And we
don't know a lot.

-- 
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

-- 
Rick Hasen
Chancellor's 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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