[EL] Voter fraud: debates are metaphysical not empirical Re: Interview request

[Smith, Brad]

I think the first part of David's argument is weak. It would appear that the video operators did not want to actually cast ballots either due to fear of legal consequences should they be caught, or due to having no desire to influence the results of an election. That generally law abiding persons would want to make their point without violating the law says little about what people intent on committing fraud might do, as does the fact that they would be reluctant to actually influence the outcome of the election (especially one week after the Iowa caucus was decided by 8 votes). The argument, however, that there is a high chance that they would have been caught had they cast fraudulent ballots seems rather weak. I've never seen poll workers worry about fraud or verification at that stage. And the idea that they might have been caught later also seems thin. For example, if records were checked for deceased persons voting, how would that have been tied back to these individuals? Rather unlikely.

David gets on much stronger ground in recognizing that this is hardly compelling evidence that voter fraud is a problem of any serious magnitude, because it is not. The problem is that many in the anti-ID camp (where I basically consider myself as a policy, though not as a constitutional matter) regularly argue that not only is there no voter impersonation fraud, but that in fact it really cannot occur. Unless these videos are doctored or otherwise misleading (certainly a possibility at this stage) that latter argument now seems demolished.

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 David A. Schultz [dschultz at gw.hamline.edu]
Sent: Wednesday, January 11, 2012 8:59 PM
To: law-election at department-lists.uci.edu
Subject: [EL] Voter fraud: debates are metaphysical not empirical Re: Interview request

The philosopher Ludwig Wittgenstein closes his Tractatus with the
wonderful line: *Of which we have no experience, we must remain silent.*
 His statement is a plea about the need to have empirical proof to
resolve many matters of debate.  Wittgenstein*s admonition precisely
addresses the debate on proof about voter fraud.  I have commented on
this point before and will do again in light of the video alleging voter
fraud in New Hampshire.


First, producers of the video are caught in a contradiction.  They want
to demonstrate how easy it is to commit in-person voter fraud by
simulating it.  However, one of two things are true.  First, if they
want to demonstrate how easy it is to commit this fraud they actually
need to consummate the act.   They did not do that if they actually did
not cast a vote.  Had they cast the vote then voter fraud occurs.  But
if they stopped short of that we actually do not know if they would have
gotten away with the fraud.  We do not know if they have  been caught
and prosecuted once records were check to see if any dead had voted.  We
also do not know if the canvass or any complaints would have been filed
to catch them.  Thus, we really do not have in this video here clear
examples of voter fraud.


Conversely, if the producers in the video did actually commit voter
fraud to prove their point then they are essentially estopped from
claiming they did not violate the law.


But more generally, isolated case studies are a few examples of false
impersonation here do not constitute good empirical evidence of
widespread voter fraud.  The fact that this video depicted potentially
how easy it is to commit false impersonation does not support the
proposition that in fact widespread voter fraud exists.  A robbery at
one bank does not prove banks are unsafe.  As the saying goes one
swallow does not constitute a spring.  Single case studies are the
weakest form of empirical evidence there is.  Thus, this video, for
whatever it says, fails to say much about the reality of voter fraud.


Immanuel Kant spoke of metaphysical versus empirical statements. Too
much of the voter fraud discussion is simply the former-broad assertions
without real evidence.  It is like faith-based claims.  Voter fraud is
an empirical debate but is not treated as that.  It is an article of
faith for those who believe it does and rigorous social science inquiry
will not resolve the issue.  Voter fraud is a political narrative
asserted on a plain that is not about empirical evidence.  No amount of
evidence will resolve the issue.  It is like debates over whether the
Loch Ness Monster or Big Foot exist or whether there was a second
shooter on the grassy knoll.


I have made these comments several times on this listserv.  I have also
sought to make this point in a piece *Is Voter Fraud Like Littering?:
Empirical and Methodological Considerations.*    However, regardless of
my pointing out the circularity of the debate on the topic of fraud, it
goes on and I am confident that it will persist regardless of what the
evidence does or does not say.


 If it attaches to this e-mail, I am including it for all to read.  This
is the piece I referred to in an e-mail about two weeks ago, asking
members of this listserv if they could recommend a potential outlet for
this piece in time for the election.  The silent response to this
request was deafening.




David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
School of Business
570 Asbury Street
Suite 308
St. Paul, Minnesota 55104
651.523.2858 (voice)
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http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/