[EL] election crimes, registration fraud and voter fraud
Smith, Brad
BSmith at law.capital.edu
Fri Oct 12 13:45:20 PDT 2012
Whoa, Fishkin, don't misquote me. "Affected" is the term that opponents of voter ID laws sometimes use, not my term.
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
(614) 236-6317
bsmith at law.capital.edu
http://www.law.capital.edu/faculty/bios/bsmith.asp
-----Original Message-----
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Joey Fishkin
Sent: Friday, October 12, 2012 4:42 PM
To: Joe La Rue
Cc: Election Law
Subject: Re: [EL] election crimes, registration fraud and voter fraud
I hesitate to add to this discussion thread. But I did appreciate reading Mr. La Rue's comment below that he agrees with Marty that even one person disenfranchised by voter ID laws is "one too many."
So let's be serious. There is plenty to dispute about how many people each ID law actually disenfranchises. But I think we can put a floor under that dispute. Suppose we bend over backwards to be as favorable to the pro-photo-ID side as possible. Here in Texas, even the highly flawed survey by Texas' own expert, in support of the law, found that about 5-6% of the population of lacked the required ID (whereas opponents' experts' figures were higher). Suppose you think that for some reason even Texas' expert's number is greatly exaggerated, say doubled, i.e. it's really more like 2.5%. Further suppose that of that sliver who lack ID, the vast majority of them (say 90%) can "easily" get one in your opinion, so that they are "affected" but not "disenfranchised" in Brad Smith's terms (notwithstanding the large distances many must travel in Texas, without drivers' licenses, taking time off work, to produce documents they may not have to obtain said ID). In other words, let's make favorable assumptions about how few people will actually be disenfranchised, beginning with Texas' own flawed expert report and discounting repeatedly from there. Even after all that somewhat dubious arithmetic, there would still be more than 30,000 Texans who would have been disenfranchised by the ID law right now, in the sense of not having any way to vote this November, if the law had been precleared.
If we agree that one is too many, can we agree that 30,000 is too many? And can we then also agree that laws like the one in Texas should not be enacted unless they fix this problem and get IDs to these 30,000 people? Part of the asymmetry between the fraud claims and the disenfranchisement claims surrounding voter ID is the location of the empirical dispute. The dispute about in-person voter fraud is about whether there is any. The dispute about the disenfranchisement caused by photo ID laws is about the order of magnitude -- whether we're talking about thousands of people or hundreds of thousands of people. That's where the dispute is. I think this asymmetry matters, because frankly, this debate shouldn't only be about "how many." Even one disenfranchised person is one too many -- a proposition with which I'm glad Mr. La Rue agrees. The only way to get to "zero" people disenfranchised is to adopt definitions of "disenfranchised" so crabbed that they can't describe most of the disenfranchisement that led to the VRA.
Joey
Joseph Fishkin
Assistant Professor
University of Texas School of Law
727 E. Dean Keeton St., Austin, TX 78705 jfishkin at law.utexas.edu
On Oct 12, 2012, at 11:31 AM, Joe La Rue wrote:
> The fact that Rick was unable to uncover evidence of in-person voter fraud does not mean it doesn't occur. It just means that, if it occurs, it's goes unreported. And that makes sense: in order for us to know about a fraudulent in-person vote, the fraudulent voter must be caught. That's difficult to do without picture ID requirements. In fact, it seems to me the only way it would happen is if the real person whose identity the fraudulent voter stole shows up to vote afterwards and finds he's been disenfranchised, and then decides to press the issue. Given the pathetically low number of Americans who vote, it is far from certain that would occur.
>
>
> I do agree with Rick that in-person voter fraud is likely rare. I also agree with Marty (strangely enough) that any case of disenfranchment because a person was unable to comply with the requirements to vote is one too many. I reject, however, the underlying assumptions that (1) poor people and minorities are too stupid or otherwise incapable to comply with photo ID requirements (I happen to think they're very bright and capable), and (2) Republicans are interested in disenfranchising people (we're not; we're interested in protecting the vote).
>
> Joe
> ___________________
> Joseph E. La Rue
> cell: 480.272.2715
> email: joseph.e.larue at gmail.com
>
>
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>
>
>
> On Fri, Oct 12, 2012 at 9:17 AM, Marty Lederman <lederman.marty at gmail.com> wrote:
> Rick: I don't think the "there's no problem on either end" meme holds up. It's a case of false equivalence.
>
> As you note, there is virtually no evidence of any impersonation fraud that would be remedied by a voter ID law -- and the supporters of ID laws know this. That strongly suggests that they support such laws not in order to eliminate any voter fraud, but instead for the (wholly illegitimate) purpose of trying to prevent eligible voters from voting--a conclusion bolstered by the fact, which you emphasize, that they have done virtually nothing to address the sources of actual voter fraud.
>
> OK, but Dan says: Even if that is their motive, they're not getting any bang for their buck -- don't sweat it, because such voter ID laws will not prevent "significant numbers from voting." And you add that it's difficult for challengers of such laws to identify "real eligible voters who (1) lack id; (2) would have trouble getting the id; and (3) want to vote."
>
> That may be true -- it might be difficult to identify particular willing voters who "would have trouble getting the id" -- in part because once we identify such a person, it might not be especially difficult to guide them through the steps they'd need to take to obtain the ID.
>
> But even so, there will in fact be some number of voters -- overwhelmingly less-well-to-do voters, who tend to vote Democratic -- who will not in fact obtain the ID, however "troublesome" we might consider it to be to do so. And thus they won't be able to vote -- and their franchise will have been lost without any resulting gain in preventing voter fraud (or any other legitimate state interest).
>
> Is that number of voters "significant"? Well, since I think the franchise is very precious, I'd tend to say "yes," no matter what the number is. But in any event, I think it's safe to say that the proponents of the laws sure think the number would be significant -- in the sense of having a possible affect on the outcome of some races, perhaps even the presidential electoral votes in a particular state -- or else they wouldn't go to the trouble of making such efforts to push through these laws.
>
> Is there any reason to think these very astute and dedicated political operatives are wrong -- that in fact virtually the same number of votes will be cast and counted with ID laws?
>
> On Fri, Oct 12, 2012 at 11:47 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
> 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 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. 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 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 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:
>
> Recently, officials 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 to try to steal an election.)
>
> Pointing to a few isolated cases 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 othe r 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-st
>> affer-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
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