[EL] Interview request

Wed Jan 11 15:35:51 PST 2012

Perhaps prosecutors should investigate and prosecute (and perhaps not, if cooler heads prevail); but does that say anything one way or the other about the, what should we call it, "experiment"?  If O'Keefe's experiment is correct and it is easy to pull the names of recently deceased voters, and then to send people in to vote them, that would seem to be pretty relevant to the debate over voter ID (at least demanding a substantive response from opponents of ID laws) and simply urging that the testers be prosecuted without that substantive response seems an awful lot like an effort to change the subject.

If I recall, in 2008, a bunch of nuns in Indiana, rather than get IDs which were readily attainable, made a big point of going down to vote without getting IDs, basically to make a political PR statement. O'Keefe's actions (or those of the people requesting ballots in his scheme) may have been illegal (I don't know on the question of voting the ballots), but in spirit strike me as little different from the actions of the nuns. A bit of theater to make a point, but no actual harm to the integrity of any election results done. While I don't encourage that (perhaps a small fine would be appropriate), it seems a bit churlish to demand prosecutions but not to address the issue the may have been exposed.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Rick Hasen [rhasen at law.uci.edu]
Sent: Wednesday, January 11, 2012 6:13 PM
To: Justin Levitt
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Interview request

I never said there was no crime.  I'm with Justin.  And I've urged<http://electionlawblog.org/?p=27771> prosecutors to investigate, which they now apparently are<http://tpmmuckraker.talkingpointsmemo.com/2012/01/election_law_experts_say_james_okeefe_accomplices_could_face_charges_over_voter_fraud_stunt.php?ref=fpnewsfeed>.

On 1/11/2012 3:09 PM, Justin Levitt wrote:
Are we sure?

Federal law<http://www.law.cornell.edu/uscode/usc_sec_42_00001973--gg010-.html> prohibits fraudulently "procuring" ballots in addition to "casting" them, which might indicate that a crime is complete even if the ballot is not voted.
And state law<http://www.gencourt.state.nh.us/rsa/html/LXIII/659/659-34.htm> similarly prohibits "applying for" a ballot in a name other than your own, in addition to "voting".

I don't know whether either of those provisions have ever been enforced, much less construed, for ballots that have not been voted, and to me, the more natural reading is to construe them so as to apply to procuring ballots for other people to vote them.  But I could understand an alternative view.  And as I keep hearing with respect to this issue, whether the provision has been enforced in such circumstances isn't a particularly good gauge of whether criminal activity has occurred.

Justin

On 1/11/2012 2:46 PM, Frank Askin wrote:

I agree with Rick Hasen.  It appears that none of O'keefe's actors was
stupid enough to actually vote and risk a 5-year jail sentence.  I wish
they had.... Also, it is unclear whether a voter in New Hampshire has to
sign in before voting.  When I go to vote, no one asks me for ID but I
have to sign the register so my signature can be compared with the one
in the book.  FRANK

Prof. Frank Askin
Distinguished Professor of Law       and Director
Constitutional Litigation Clinic
Rutgers Law School/Newark
(973) 353-5687>>> Scott Bieniek <sbieniek at bienieklaw.com><mailto:sbieniek at bienieklaw.com> 1/11/2012
4:53 PM >>>
“Who in their right mind would risk a felony conviction for this? And
who
would be able to do this in large enough numbers to (1) affect the
outcome
of the election and (2) remain undetected?” Hasen wrote.
I'm not buying this argument. You could make the same argument against
quid-pro-quo corruption, and the need for contribution limits and
compelled
disclosure.

Quid-pro-quo corruption is typically a felony, and yet we have
contribution
limits and compelled disclosure, in part, because the risk of
prosecution
is deemed insufficient to deter the conduct, or at least prevent the
appearance thereof in the eyes of the public.

If the appearance of corruption is sufficient to support contribution
limits and compelled public disclosure, why isn't the appearance of
in-person voter fraud sufficient to justify voter ID?

In return for Voter ID, we get:
1. Restored public confidence that it is harder for O'Keefe and others
to
pull off a stunt like this.
2. A method of detecting in-person voter fraud at the time of the
crime.

And because wagers are all the rage this cycle, I'd be willing to
wager
that a higher percentage of the public believe that Voter ID prevents
in-person fraud than those that believe limits or disclosure prevent
corruption.

Scott Bieniek

On Jan 11, 2012, at 12:54 PM, "Ryan J. Reilly"
<ryan at talkingpointsmemo.com><mailto:ryan at talkingpointsmemo.com>
wrote:

I'm writing a story about James O'Keefe's new video in which his
associates
obtained ballots using the names of recently deceased New Hampshire
voters
and was hoping someone would be available for an interview on short
notice.
As far as I can tell this is the largest coordinated attempt at
in-person
voter impersonation fraud, and it was conducted by a group to show why
voter ID laws were necessary. I'm at 202-527-9261.

Here's the video:

http://www.youtube.com/watch?v=9-uVhhIlPk0&feature=player_embedded#!

Thanks,

--
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<mailto: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<mailto:rhasen at law.uci.edu>
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
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