[EL] Fwd: re “Kansas’ state voter ID law tested in August primary”

[Pitts, Michael Jude]

At the risk of wading into a photo ID discussion on this list-serve, I tend to agree with Robbin’s position that it’s unlikely folks intentionally committing fraud would leave a paper trail.  In addition, to the extent anyone has tried to track down whether these no photo ID provisional voters are “legit”, Marion County, Indiana, did so with a very limited number of provisional ballots (around 35 or so) cast at one election.  The result was that Marion County was able to legitimate the vast majority of these provisional voters.  (You can find these stats in the brief Marion County filed with the Supreme Court in the Crawford case.)

It seems to me that the best way to make the case that these provisional ballots are fraudulent due to voter identity theft would be to generate statistics from signature matching.  For instance, I think (and someone please correct my information if it is wrong) Florida has a photo ID requirement that allows voters who do not have an ID to cast provisional ballots that are then subjected to signature-matching by local election officials.  If the signature matches, the provisional ballot will count; if the signature doesn’t match, the provisional ballot won’t count.  My recollection is that at the general election in 2008, about 400 provisional ballots in Florida were rejected for a failure to match signatures.  I don’t know, however, how many total ID provisional ballots there were in Florida at that election.  Moreover, one could make the case that local officials do a lousy job of signature-matching (and that can work both ways—either false positives or false negatives).  Nevertheless, that still seems to me to represent a better avenue for studying the possibility that ID-related provisional ballots are fraudulent.

Best,
Mike

Michael J. Pitts
Professor of Law & Dean's Fellow
Chair, Faculty Recruitment Committee
Indiana University Robert H. McKinney School of Law
530 West New York Street
Indianapolis, IN 46202
317-278-9155
mjpitts at iupui.edu
Webpage: http://indylaw.indiana.edu/people/profile.cfm?Id=293




From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Robbin Stewart
Sent: Tuesday, September 25, 2012 1:28 PM
To: Election Law
Subject: [EL] Fwd: re “Kansas’ state voter ID law tested in August primary”


---------- Forwarded message ----------
From: Robbin Stewart <gtbear at gmail.com<mailto:gtbear at gmail.com>>
Date: Tue, Sep 25, 2012 at 1:27 PM
Subject: Re: [EL] re “Kansas’ state voter ID law tested in August primary”
To: JBoppjr at aol.com<mailto:JBoppjr at aol.com>


Sure. So anybody who is interested and has the resources can go check out those 405 ballots, and publicize their findings and call for prosecution of any fraudsters they find. The same thing could be done in Indiana, where there have been about 2000 uncounted ID-related provisional ballots since 2008. Sounds like a worthwhile project.

On Tue, Sep 25, 2012 at 8:42 AM, <JBoppjr at aol.com<mailto:JBoppjr at aol.com>> wrote:
Isn't there a third possibility, that the people who attempted to vote were not entitled to vote so the voter ID law prevented voter fraud?  Jim Bopp

In a message dated 9/25/2012 12:22:55 A.M. Eastern Daylight Time, gtbear at gmail.com<mailto:gtbear at gmail.com> writes:
http://electionlawblog.org/?p=40653
The 2012 Kansas primary gives us some new data on the effects of voter ID. We learn that of 405 provisional ballots for not having ID, 251 did not return with more ID and did not have their ballots counted. So, in the population of people casting provisional ballots, voter ID requirements deterred 60% of these people from finalizing their votes.

This is voter disenfranchisement in a weak sense; they tried to vote but their votes were not counted. In most cases probably, it is not voter disenfranchisement in the stronger sense of, most of these people could have voted if they put more time effort and money into it, but they didn't bother. It is not entirely reasonable to extrapolate this more generally and say that voter ID keeps 60% of voters away from the primary; the populations are not exactly comparable. However, now we have some numbers where before we had guesses.
If our concern is with the integrity of the elections, it should matter that voter ID requirements deter 60%, at least of this small sample. Primary turnout is already low enough that some people think the result promote extremists (like Kobach), and that the focus for election integrity should be on getting more voters, by reducing the costs of voting.
As far as I know, none of the litigation so far has really focused on this point, deterrence rather than disenfranchisement in the strong sense. The state interest typically cited by states is election integrity. Instead of focusing  argument on how individual voting rights outweigh the state interest, one could argue that the means are a poor fit, and do not actually promote election integrity after all, so if one is doing an Anderson balancing test, there's nothing on that side of the balance. 251 votes out of 1/3 of a million is not a lot, so in one sense the program is a "success" in that it does less measurable harm than some predicted. My sense is that voting is like an iceberg, 9/10th invisible. If there were 405 provisional ID-related ballots, there were probably 4050 people deterred from voting (and 4 or 5 actually fraudulent votes deterred.) But I have no way to prove or measure this. In my neighborhood we often have elections decided by a handful of votes. I did not get around to attending the Libertarian convention this year in Las Vegas as a delegate, as I have sometimes done before, and a guy know pretty well lost the party chairmanship election by one vote on the 5th ballot. In the Indiana primary this year, I was turned away from the polling place because I'm not willing to show a voter ID. This time, I didn't bother to cast a provisional ballot. They don't, in Indiana, keep any records of how many people show up, want to vote, but are sent away for no ID. Having such records might be useful. Eventually Indiana's voter ID will be back in court on an as-applied, data-based challenge,and the more data there is the more the court can fairly engage in balancing competing interests.

I just wanted to point out that the kansas numbers can be read one way, as a great success for voter ID, but looked at another way, show a great failure.

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