[EL] Interview request
Smith, Brad
BSmith at law.capital.edu
Wed Jan 11 16:06:54 PST 2012
Well, I think, Susan, you do see it as relevant, and your response (as opposed to "let's prosecute O'Keefe") is exactly what I was looking for and suggesting was more appropriate.
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: Susan Lerner [SLerner at CommonCause.org]
Sent: Wednesday, January 11, 2012 7:03 PM
To: Smith, Brad; law-election at department-lists.uci.edu
Subject: RE: [EL] Interview request
I disagree with Brad's assertion that this video has any great relevance in the debate over the existence or likelihood of in-person voter fraud. A sensationalist video like O'Keefe's is meant to flame the fires of outrage by people on both sides of the issue, not to seriously illuminate a problem or to provide real support for a particular solution to the purported problem.
If it is easy to impersonate someone who is deceased at New Hampshire's polls, why on the basis of this video would anyone assume that the only or even the best solution is Voter ID when there are commonsense administrative changes which could be made to obviate the purported threat of hordes of frat boys fraudulently voting without risking preventing qualified voters from voting?
I understand that New Hampshire does its reconciliation of its voter rolls some months before election voting takes place. If the reconciliation happened much closer to the primary and election days, the chances of a deceased person remaining on the rolls would be significantly diminished.
Similarly, it appears from the video that voters are not required to sign the voter records before receiving a ballot. In the jurisdictions that I am familiar with, you can't obtain a ballot without signing the book, in order to allow signature comparison to identify unqualified or fraudulent voters. Requiring a signature does not require advance preparation or additional expense on the part of the voter, and it does not disenfranchise significant numbers of elder, poor and minority voters.
***************
Susan Lerner
Executive Director
Common Cause/NY
t: 212-691-6421
c: 917-670-5670
-----Original Message-----
From: law-election-bounces at department-lists.uci.edu on behalf of Smith, Brad
Sent: Wed 1/11/2012 6:35 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] Interview request
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
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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