[EL] Interview request
Justin Levitt
levittj at lls.edu
Wed Jan 11 16:08:33 PST 2012
I have a different recollection about the Indiana nuns -- including
whether the IDs were actually "readily attainable" for 98-year-old
non-drivers. And as I recall, the majority of nuns in the convent were
_dissuaded_ from showing up at the polls when they heard about their
fellow sisters being turned away, which seems like a particularly poorly
executed publicity exercise. But I also wasn't on-site. And I have no
doubt that some on-site thought it was a publicity stunt, and some did
not, which does little to resolve the issue.
Moreover, it's a fair point that Brad makes about generally responding
to the substance ... though I don't think the substance of the
"experiment" is worth all that much in reflecting on the policy.
My problem with the substance of the "experiment" (beyond its potential
illegality) is that it to the extent it is intended to be relevant to
the debate over restrictive voter ID laws, it encourages uninformed
policymaking by unrepresentative anecdote. (When you go looking for
actual dead voters, you more often find this
<http://dev.beloblog.com/KMOV_Blogs/n4idailybriefing/2007/05/the_dead_list_backstory.html>.)
The more thoughtful discussions about ID are -- as I think you've
pointed out, Brad -- driven by data. They're debates about costs and
benefits, including different ways in which states may ask voters to
identify themselves, and different ways in which those methods of
identification impact the electorate. The "experiment" does little to
tease out whether asking someone to sign in is different from asking
them to show some form of documentation is different from asking them to
show one or two state-specified cards. It does nothing to identify the
relative impact of any of those rules on real individuals. And it does
nothing to identify whether plugging the potential security breach is
worth the demonstrated cost. The video isn't intended to do any of
those things -- it's intended to sensationalize one aspect of the
problem. Mr. O'Keefe has shown a talent at succeeding at this
particular goal. But I'm not sure that calls for a "substantive"
response from opponents of ID laws. If anything, it would call for
sensationalism in return. And I don't see how that helps anyone other
than the sensationalists.
Put differently: if I manufacture a fake photo ID and sign in at the
polls using that fake photo ID, would the fact that I've surreptitiously
videotaped it demand a substantive response from those who favor ID
laws? Or would that particular criminal act be not terribly
representative of how the system normally works?
Justin
On 1/11/2012 3:35 PM, Smith, Brad wrote:
> 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'veurged
> <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> 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>
>>> 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
>
>
> _______________________________________________
> 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
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120111/91ffaa69/attachment.html>
View list directory