[EL] Vote fraud -- evidence vs. belief

Fri Jul 20 14:51:43 PDT 2012

Ah, yes, reality vs. perception. When there is a burglary, or some other
crime that gets covered on TV and the story gets follow up coverage for
several days the perception is that there are many crimes and we had best be
cautious. But the reality is there was just one crime. We have reformed our
way into a whole raft of bad situations in quest of the perception of
political corruption. And after all the reforms the perception persists. Has
the right yelled "voter fraud" so loud and so long that they have created
the perception? How does the old argument go: if you aren't going to do
anything illegal you should mind the law that prohibits the action.

Larry

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Justin
Levitt
Sent: Friday, July 20, 2012 1:35 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] Vote fraud -- evidence vs. belief

I think Mark's "friend X" email and this one actually capture the problem
nicely.  The issue is not whether there are security risks in the abstract
(life is a security risk in the abstract), but whether any incremental
measure aimed at security is worth the associated cost, including
unanticipated consequences for people like X.  There are many ways to
determine that people are who they say they are; every single state has one,
at various places along the range of efficacy.  The more limited the menu of
options, the more cost to individual voters without handy access to those
options.   Some states have recently limited the menu quite substantially;
most have not.

The debate about the extent of current fraud feeds the discussion of whether
an incremental measure of restriction is worthwhile.  I've got windows.  And
I would hate for someone to break in.  I could hang curtains to hide the
contents of my house, or install a block to stop the windows from opening
more than a few inches, or purchase a monthly burglar monitoring service, or
install ugly iron grates on the windows, or get an attack dog, or put up a
locked fence at the sidewalk, or hire a private security force to be on site
24-7.    It's always going to be a potential vulnerability that someone
could break in.  If potential harm is the only appropriate measure, then I
should always take all of the measures possible, at least up to the
replacement value of my stuff and my lost sense of personal security.  Bring
on the private home security -- and I hope you've all got security guards
too, because hey, there's a real potential vulnerability.

The incidence of actual home burglaries in my area matters.  It's not a
perfect gauge, but it speaks generally to the general adequacy of existing
measures to confront the problem.  And it also informs the extent of the
costs that I should be willing to bear to ensure adequate prevention.   

(For what it's worth, I think that the greater incidence of past problems
confirms the need to spend more effort on absentee balloting issues, as Mark
suggests; and I'm hopeful that the vulnerabilities of voting systems can be
addressed using tools and techniques where the primary costs are to the
public fisc -- to me, an acceptable cost -- rather than the individual
exercise of the franchise).

Justin

On 7/20/2012 12:46 PM, Scarberry, Mark wrote:

In response to Jim: Conservatives generally have no problem believing that
people may act foolishly for various reasons. Conservatives tend to have a
more realistic view of human nature than do some liberals. Conservatives
may believe it is foolish for people to support liberal policies, but
conservatives generally are quite willing to believe that people do so in
large numbers. No conservative that I know has any difficulty believing that
a majority of voters in New York, for example, vote for candidates who
support liberal policies, or that President Obama received more votes than
Sen. McCain. Conservatives also think that there are a lot of people who
benefit from a large government who are likely to vote in favor of govt
expansion. Conservatives are not at all surprised, for example, that a lot
of government workers would do so. Whether or not that is a foolish decision
depends on the factors that it may be reasonable for people to take into
account in voting.

With regard to real reasons why at least some people who support voter ID
laws do so: There is a concern that fraud may occur in the future. Perhaps
it is analogous to the fear that electronic voting systems may be hacked so
as to change voting results. Even if there is no evidence that it has
occurred, there is a system vulnerability that can reasonably be considered
in deciding what action may be appropriate, in part to prevent the
vulnerability from being exploited and in part to help assure voters that
the system has integrity.

Discussions on this list have persuaded me that there is little current
voting fraud that would be prevented by voter ID laws, and that there should
be more concern about absentee voting, voting by mail, and new Internet
voting systems. I also have an innate distrust of non-transparent systems
like electronic voting and would prefer that we use paper ballots that can
be recounted manually. That does not mean that it is unreasonable to take
into account other  vulnerabilities of the system that could be exploited in
the future. Explanations about why voter ID laws are not needed or helpful
to address a potential vulnerability will be more persuasive than data
showing a lack of current fraud that would be prevented by voter ID laws. 

Mark S. Scarberry

Professor of Law

Pepperdine Univ. School of Law

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Jim
Gardner
Sent: Friday, July 20, 2012 12:08 PM
To: Election law list
Subject: [EL] Vote fraud -- evidence vs. belief

The lack of evidence to support charges of vote fraud raises a more
interesting and profound question: Why do people continue to believe in it?
The answer, it seems to me, has nothing to do with evidence - so arguing
about the evidence is probably a waste of time - and a lot to do with
culture, specifically the culture of contemporary politics.  

I think the problem here is that many on the right have managed to convince
themselves that it is impossible - literally impossible - for people in any
kind of numbers to support liberal policies.  Since people can't possibly
support such policies, they can't possibly vote for liberal candidates.
Consequently, if liberal candidates win, it can only be the result of fraud
because nobody could actually vote for such people.  

This problem is cultural.  It reveals a very sad fact about our current
politics, namely that the views, beliefs, and experiences of other human
beings are so completely dismissed and devalued in some quarters that many
find it impossible to take seriously the possibility that their fellow
citizens could actually hold certain views (much less actually take those
views seriously or engage with them on the merits).

I hasten to add that the political valence does not always run in the same
direction.  For example, the "What's the Matter with Kansas" analysis holds
that working class voters couldn't possibly support candidates who support
policies that disadvantage them economically, although proponents of this
view explain it by brainwashing rather than vote fraud.  But this
explanation doesn't take seriously the possibility that social and
symbolically resonant issues could actually be more important than economic
ones to some segments of the population.

Until we start taking each other seriously as political agents, we're not
going to extract ourselves from the current impasse.

Jim

________________________________
James A. Gardner
Joseph W. Belluck and Laura L. Aswad
  SUNY Distinguished Professor of Civil Justice
SUNY Buffalo Law School
The State University of New York
Room 316, O'Brian Hall
Buffalo, NY 14260-1100
voice: 716-645-3607
fax: 716-645-5968
e-mail: jgard at buffalo.edu
www.law.buffalo.edu
Papers at http://ssrn.com/author=40126

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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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