[EL] Interview request
Smith, Brad
BSmith at law.capital.edu
Wed Jan 11 18:47:44 PST 2012
This seems like a rather hysterical attack. We learn that a person with a motivation can find the names of quite a few recently deceased voters (although I don't know, I suspect it would be pretty easy). We learn, of course, that motivation matters, but the argument for ID is usually built around arguing that people have an incentive to carry out exactly this type of fraud. The ad hominem attack on O'Keefe seems rather besides the point. Although I don't know, I would presume that creating fake IDs adds at least one more magnitude of difficulty than figuring out the names and polling places of recently deceased individuals.
Susan offers some less restrictive means to reduce this type of fraud, which seems much more constructive.
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 Lori Minnite [lminnite at gmail.com]
Sent: Wednesday, January 11, 2012 9:00 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] Interview request
What do we learn from O'Keefe's experiment? We don't learn whether it's
easy or difficult to identify recently deceased registered voters. If
we didn't know this already, we learn that motive is important in the
commission of a crime like voter fraud. O'Keefe, a man with a criminal
record, wanted to film a crime. It would have been more educational if
his stunt men actually handed over fake IDs to the poll workers, who
most likely would have handed them back their ballots.
Lori Minnite
On 1/11/2012 7:06 PM, Smith, Brad wrote:
> 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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