[EL] election crimes, registration fraud and voter fraud
Rick Hasen
rhasen at law.uci.edu
Fri Oct 12 08:47:37 PDT 2012
I think Dan is right on this, and I think the overheated rhetoric in
many of the posts which have come through this morning (please take a
breath and think before you hit send) is a sad illustration of his point.
Here's what we know about in-person, impersonation fraud. Almost all
the fraud that occurs in relation to election falls into three
categories: election crimes committed by election officials (Cudahy
<http://latimesblogs.latimes.com/lanow/2012/07/cudahy-corruption-election-fraud.html>
is a recent colorful example), voter registration fraud (a la ACORN
workers and now apparently Sproul workers---though there is still an
investigation of those), and absentee ballot fraud. This usually occurs
through vote buying and there are examples of such fraud in every
election. See Adam Liptak's recent piece
<http://www.nytimes.com/2012/10/07/us/politics/as-more-vote-by-mail-faulty-ballots-could-impact-elections.html>.
The Justice Dept. under Bush spent five years going after election
crimes and voter fraud, and almost all the cases it found (I believe it
was reported first as 86 and then as 120) fell into these categories.
There were /no cases/ of in person, impersonation fraud---the primary
type of fraud which a state voter id law can prevent.
For my book, I tried to find a single example of impersonation fraud at
the polls, done without the cooperation of election officials (because a
voter id law would not prevent that), in the last generation, where the
results could arguably have been called into question by such fraud. I
could not find one. Nor can those who tout the voter fraud claims find
one. Von Spakovsky pointed to what he called "extensive impersonation
fraud" in a Heritage report (and related FOX News oped) based upon a
1984 grand jury report <http://electionlawblog.org/?p=23572> from
Brooklyn. He stonewalled on giving me the report and when UCI
librarians tracked it down it did not support his claim: the crimes were
almost all by election officials and party officials. (Note that crimes
committed in the 1970s are particularly relevant to what is going on
today in any case....).
News21
<http://openchannel.nbcnews.com/_news/2012/08/11/13236464-new-database-of-us-voter-fraud-finds-no-evidence-that-photo-id-laws-are-needed>did
a recent comprehensive study of all reports by prosecutors of election
crimes since 2000. They found only 10 prosecutions for impersonation
fraud across the country (leading to what looks like 7 convictions),
with none of them tied to any kind of conspiracy to steal the vote.
This compares to 491 cases of absentee ballot fraud and 400 cases of
registration fraud. There is no reason to believe that impersonation
fraud would be /harder/ to detect than these other kinds of fraud.
Instead, because it would involve a conspiracy among a number of
individuals going to the polls and claiming to be someone else listed on
the polls (someone out of the area, or dead, or false
registered---though we don't see case of that), it should be easier to
detect. The reason this kind of fraud doesn't happen except in very
rare circumstances is that it is an exceedingly dumb way to steal an
election. Election official fraud and absentee ballot fraud are easier
and therefore more prevalent.
There are cases of double voting across states, but state id laws are
not the best way to catch that. The best way is with a national id,
which is something I'd support if it were coupled with universal voter
registration done by the federal government.
I've written too about how it is very hard for plaintiffs in the voter
id challenges (putting aside Pa., which did not have its act together in
time) to find real eligible voters who (1) lack id; (2) would have
trouble getting the id; and (3) want to vote. There are some, and the
question is one of cost and benefits: state voter id laws inconvenience
a lot of people without much anti-fraud payoff. And compare that to
cutting back on absentee ballots to prevent that kind of fraud. As I
recently wrote
<http://campaignstops.blogs.nytimes.com/2012/08/05/a-dtente-before-the-election/?ref=opinion>:
Recently, officials
<http://latimesblogs.latimes.com/lanow/2012/07/cudahy-corruption-election-fraud.html>
in Cudahy, Calif., admitted intercepting absentee ballots and
throwing out ballots not cast for incumbents. Every year we see
convictions for absentee ballot fraud. Not a lot, but enough to know
it's a problem.
So you might think that Republicans, newly obsessed with voter
fraud, would call for eliminating absentee ballots, or at least
requiring that voters who use them show some need, like a medical
condition. But Republicans don't talk much about reining in absentee
ballots. Eliminating them would inconvenience some voters and would
likely cut back on voting by loyal Republican voters, especially
elderly and military voters.
If only Republicans would apply that same logic to
voter-identification laws. The only kind of fraud such ID laws
prevent is impersonation: a person registered under a false name or
claiming to be someone else on the voter rolls.
I have not found a single election over the last few decades in
which impersonation fraud had the slightest chance of changing an
election outcome --- unlike absentee-ballot fraud, which changes
election outcomes regularly. (Let's face it: impersonation fraud is
an exceedingly dumb way <http://electionlawblog.org/?p=23053> to try
to steal an election.)
Pointing to a few isolated cases
<http://electionlawblog.org/?p=33751> of impersonation fraud does
not prove that a state identification requirement makes sense. As
with restrictions on absentee ballots, we need to weigh the costs of
imposing barriers on the right to vote against the benefits of fraud
protection.
On 10/12/12 7:43 AM, Lowenstein, Daniel wrote:
> Jim's second point illustrates the only aspect of the photo ID controversy that interests me. So far as I can tell, the opposing concerns that animate the opposing sides are utterly unfounded. Republicans are wrong that photo ID will prevent significant voter fraud and Democrats are wrong that the requirement will prevent significant numbers from voting. There are no doubt some demagogues on both sides who are whipping up these two forms of hysteria for partisan reasons, but I have spoken to many ordinary voters on both sides and I am convinced that they are utterly sincere in their belief in their own party's form of hysteria. But while each side believes what it believes, neither is willing to credit the other side for sincere belief. Thus, each side demonizes the other--Republicans believe Democrats are trying to steal elections with fraud, Democrats believe Republicans are trying to suppress voting by preponderantly Democratic groups.
>
> Best,
>
> Daniel H. Lowenstein
> Director, Center for the Liberal Arts and Free Institutions (CLAFI)
> UCLA Law School
> 405 Hilgard
> Los Angeles, California 90095-1476
> 310-825-5148
>
>
> ________________________________
> From: JBoppjr at aol.com [JBoppjr at aol.com]
> Sent: Friday, October 12, 2012 7:32 AM
> To: Lowenstein, Daniel; rhasen at law.uci.edu; law-election at uci.edu
> Subject: Re: [EL] Check out New O'Keefe video: Obama campaign staffer caught helping a...
>
> Before the controversy over the Voter ID, I thought the same thing -- that absentee voter fraud was the problem. But I have changed my mind for two reasons: (1) if someone, like these Obama campaign workers, would so willing commit voter fraud through the absentee process, why wouldn't they also do it on election day, if there were opportunities to do so without getting caught. A person is either a crook or isn't. So, for instance, if you have instant registration and then voting on election day, without a voter ID law, then in precincts dominated by one party this seems like a prime opportunity. (2) Has been the reaction of the opponents, particular the Democrats. I first thought that voter ID was a modest proposal all the way around: it was dealing with a modest threat of voter fraud, but also without a serious impediment to voting. What happened is that Democrat politician flipped out, calling it racist, claiming thousands would be disenfranchised, etc, without reason. In other words, they "protest too much." I figured we were on to something -- in person voter fraud -- that was more serious than I thought.
>
> In person voter fraud in such cases as I have mentioned is very hard to prove, but that does not mean that it does not happen. From time to time, however, we see people like these Obama operatives who clearly are prepared to commit voter fraud and it is just reasonable to suggest that they would do it in person if they had a chance -- which voter ID laws, in large measure, prevent. Jim Bopp
>
> In a message dated 10/12/2012 10:08:44 A.M. Eastern Daylight Time, lowenstein at law.ucla.edu writes:
> I think the more sensible Democrats have claimed there is no or virtually no voter fraud that can be avoided by a photo ID requirement, not that there is no significant voter fraud at all. I very much agree with Rick and others who have said the biggest concern about voter fraud arises from the widespread use of voting by mail, which gives rise not only to potential fraud problems but, I believe, even worse problems of intimidation and bribery. Indeed, the reporter in the video is representing to vote, fraudulently, in Florida by mail, not be impersonation.
>
> Best,
>
> Daniel H. Lowenstein
> Director, Center for the Liberal Arts and Free Institutions (CLAFI)
> UCLA Law School
> 405 Hilgard
> Los Angeles, California 90095-1476
> 310-825-5148
>
>
> ________________________________
> From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of JBoppjr at aol.com [JBoppjr at aol.com]
> Sent: Friday, October 12, 2012 6:44 AM
> To: rhasen at law.uci.edu; law-election at uci.edu
> Subject: [EL] Check out New O'Keefe video: Obama campaign staffer caught helping activist v
>
> Click here: New O'Keefe video: Obama campaign staffer caught helping activist vote twice | The Daily Caller<http://dailycaller.com/2012/10/10/new-okeefe-video-obama-campaign-staffer-caught-helping-activist-vote-twice/#ixzz293I3dEts>
>
> Obama campaign caught red handed participating in voter fraud by helping voters vote in two different states in this election. And some say there is no voter fraud! Jim Bopp
--
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
Now available: The Voting Wars: http://amzn.to/y22ZTv
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