[EL] Interview request
William Groth
wgroth at fdgtlaborlaw.com
Wed Jan 11 17:08:47 PST 2012
As one of the attorneys for the plaintiffs who challenged Indiana's photo ID law in the Crawford case, the assertion that the Indiana nuns in South Bend were engaged in a premeditated publicity stunt or were deliberately making a "political statement" is unfounded and simply absurd. After the incident was reported in the media, we made repeated efforts to speak with these nuns and were rebuffed. Their subsequent reticence to speak with anyone about their experience attempting to vote without ID belies any claim that they had a political motive. And these nuns, who I recall were all in their 70s, 80s and 90s, were non-drivers for whom obtaining required ID would have been anything but easy.
Bill Groth
------- Original Message ------- On 1/12/2012 12:08 AM Justin Levitt wrote:
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.)
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 part
icular 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've urged prosecutors to investigate, which they now apparently are.
On 1/11/2012 3:09 PM, Justin Levitt wrote: Are we sure?
Federal law 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 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 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 c
orruption, 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 Bieni!
ek On Jan 11, 2012, at 12:54 PM, "Ryan J. Reilly" 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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-- 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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