[EL] Incidents of fraud ID is designed to stop
Justin Levitt
levittj at lls.edu
Wed Aug 6 13:14:33 PDT 2014
I actually share Barnaby's concerns about voter registration problems --
and particularly the impact that fake forms or sloppy forms or duplicate
forms have on election officials. (It's one of the reasons I'm very
sympathetic to calls for a more global change to voter registration that
would make the process cheaper, more accurate, more expansive, and more
secure all at the same time.)
But -- just as one example -- I'm not aware of any fake registration
form submitted by bad-apple ACORN canvassers getting paid for
registration drives where a ballot was ever cast in the fake name.
Ever. (If someone's got an example, again, I'd love it.) Which means
that what Barnaby's talking about is the benefit that ID has in stopping
potential fraudulent ballots that haven't really materialized in volume yet.
In a real analysis, that would get added to the mix of costs and
benefits. Stopping lots of actual ongoing fraud is extremely important;
stopping a trickle of ongoing fraud is important, but comparatively less
dire; stopping potential fraud is important, but less dire still. That
all has to get weighed against costs: the harshest ID laws cause real
problems for some eligible citizens; less harsh laws cause fewer
problems; and some states have figured out ways to ask people to prove
that they are who they say they are while causing no problems at all, by
accommodating those who might not have particular types of documents.
I'm all for policies that prevent potential fraudulent ballots that
haven't materialized, as long as those policies don't actually cause
problems of their own. (I take it that this is actually Barnaby's
position with respect to campaign finance: if we can prevent the
potential for official corruption without treading on First Amendment
rights, that would be less worrisome ... but that without scads of what
he views to be actual corruption, just going after potential problems is
unjustified when the preventive mechanism has real costs.)
I live in a city where there are millions of houses with millions of
glass windows. Comparatively few of those houses have iron bars or
expensive security systems. Those amount to millions of invitations to
potential burglaries or home invasions. In the neighborhoods where
burglaries and home invasions are consistent problems, I can understand
why residents bar their windows -- despite the fact that the bars cost
money and can be unsightly, the benefits make the costs worth bearing.
In the neighborhoods where burglaries and home invasions are only
potential problems -- even though anyone _could_ break in at any time --
I can understand why residents _don't_ bar their windows, but instead
take lower-cost measures that seem to address the potential problem
sufficiently.
Voter registration fraud happens, and when it does, it's a real
problem. I'm all for well-tailored solutions to that issue (and the
other forms of fraud Barnaby mentions). But rules requiring ID at the
polls don't actually stop bad registration forms. And in areas where
bad registration forms haven't actually led to fraudulent ballots, I
don't know that the costs of the harshest rules requiring ID at the
polls live up to the limited benefits of stopping a potential that
hasn't materialized.
Justin
--
Justin Levitt
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
On 8/6/2014 11:24 AM, BZall at aol.com wrote:
> Justin knows that I respect him as a researcher and writer, but that I
> disagree with many of his characterizations and conclusions.
> Here, for example, is a brief that I filed in the current Kobach v EAC
> appeal, documenting, through numerous, specific video and news
> reports, "specific and credible" voter registration fraud:
> http://moritzlaw.osu.edu/electionlaw/litigation/documents/Kobach105.pdf.
> (I have repeatedly put up my Crawford brief dealing with voter
> impersonation fraud, and Justin has acknowledged the incidents I
> documented, so I won't do that again.)
> The brief illustrates the singular difference between my analyses and
> Justin's: if there is an ambiguity, no matter how small, Justin would
> "bet" that this is the result of error, not fraud. He may be right.
> But defining "fraud" as only an intentional attempt to deceive the
> system by a person participating in an effort to change the outcome of
> an election -- which seems to be what Justin tends to do -- downplays
> the systemic effects of such things as Las Vegas unions threatening
> illegal immigrants with deportation unless they vote, and so on. Was
> it fraud for an organization to send pre-populated voter registration
> documents to dead dogs, as was repeatedly done? Was it fraud for an
> alien to register to vote -- before they received citizenship -- even
> if they received it afterwards? Was it fraud for an organization to
> intentionally register aliens to vote -- the Orange County District
> Attorney reported that 61% of their voter registrations were "illegal"
> -- even if the number who ultimately voted was not enough to sway that
> particular election? Was it fraud to send out millions of
> pre-populated voter registration forms, counting on over-worked
> election officials to weed out the duplicates and the false ones?
> "It's up to [the people who receive] them to obey all ... laws," Voter
> Participation Center's Page Gardner told the Washington Post. Even
> assuming the purest of motives doesn't make up for the fact that the
> actions put, in the kindest of descriptions, substantial stress on a
> system whose components rely on affirmations and signatures (see, e.g.
> InterTribal Council, upholding the EAC's decision to force states to
> rely solely on a signature). And to say that requiring voter ID would
> not weed out dogs and most illegal immigrants is, to put it mildly, odd.
> None of these "specific and credible" incidents are in dispute, but
> Justin's characterizations make them seem as though they are
> negligible in effect. This is defining away the problem, rather than
> analyzing what the problem is and what the consequences are. There may
> have been billions of votes cast, and the vast, vast majority may have
> been legitimate, but under Purcell, the Supreme Court notes that the
> public perception of fraud in the system has adverse consequences
> which are probably much more significant than the raw numbers of those
> reported frauds.
> Of the 1.3 million voter registration applications ACORN turned in,
> only 450,000 were legitimate. Reports like that, about which there is
> no dispute over the facts, just the motivation, fuel public distrust.
> So saying only 31 reports of voter impersonation (which may be true,
> as defined, or even in the abstract) among billions, rings hollow.
> Saying voter ID will not help either of those problems is another "thud."
> If researchers are wondering about the persistence of the American
> public's concern about fraud, it may stem from repeated attempts to
> tell them: "Nothing happening here. Move along", when something is
> clearly happening. If the explanation looks like minimizing the effect
> on public confidence, the research design is flawed. And so is the
> Brennan advocacy-oriented website, which contains only briefs that
> confirm their view.
> Barnaby Zall
> Of Counsel
> Weinberg, Jacobs & Tolani, LLP
> 10411 Motor City Drive, Suite 500
> Bethesda, MD 20817
> 301-231-6943 (direct dial)
> bzall at aol.com
> In a message dated 8/6/2014 1:09:03 P.M. Eastern Daylight Time,
> levittj at lls.edu writes:
>
> By the way, in the piece
> <http://www.washingtonpost.com/blogs/wonkblog/wp/2014/08/06/a-comprehensive-investigation-of-voter-impersonation-finds-31-credible-incidents-out-of-one-billion-ballots-cast/>
> about fraud to which Rick linked, I listed the incidents I know of
> since 2000 that reflect credible allegations of the type of fraud
> ID was designed to stop (to Brad's repeated point
> <http://department-lists.uci.edu/pipermail/law-election/2014-July/009759.html>,
> I agree that it's possible that there may be sporadic incidental
> effects on some other mistake or misconduct). And I mentioned
> that I'd welcome additional information.
>
> Specifically, I said that "I am a researcher, and so I am
> interested in a thorough list: if you have credible information
> about a specific individual whose vote was stolen by an
> impersonator at the polls, please tell me. Specific and credible
> means just that. Not — please — examples like this
> <http://www.washingtonpost.com/blogs/the-fix/wp/2014/06/27/the-manchurian-candidate-of-oklahoma/>.
> And if you have information about an incident below that indicates
> that it was error rather than fraud, please tell me that as well."
>
> That's a sincere request.
>
> --
> Justin Levitt
> 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
>
> On 8/6/2014 8:22 AM, Rick Hasen wrote:
>>
>>
>> “A comprehensive investigation of voter impersonation finds
>> 31 credible incidents out of one billion ballots cast”
>> <http://electionlawblog.org/?p=64062>
>>
>> Posted on August 6, 2014 8:15 am
>> <http://electionlawblog.org/?p=64062>by Rick Hasen
>> <http://electionlawblog.org/?author=3>
>>
>> Justin Levitt
>> <http://www.washingtonpost.com/blogs/wonkblog/wp/2014/08/06/a-comprehensive-investigation-of-voter-impersonation-finds-31-credible-incidents-out-of-one-billion-ballots-cast/>
>> for WonkBlog:
>>
>> I’ve been tracking allegations of fraud
>> <https://web.archive.org/web/20070622014244/http:/truthaboutfraud.org/index.html>
>> for years now
>> <http://www.brennancenter.org/sites/default/files/analysis/The%20Truth%20About%20Voter%20Fraud.pdf>,
>> including the fraud ID laws are designed to stop. In 2008,
>> when the Supreme Court weighed in on voter ID, I looked at
>> every single allegation
>> <http://www.brennancenter.org/page/-/Democracy/Analysis%20of%20Crawford%20Allegations.pdf>
>> put before the Court. And since then, I’ve been following
>> reports wherever they crop up.
>>
>> To be clear, I’m not just talking about prosecutions. I track
>> any specific, credible allegation that someone may have
>> pretended to be someone else at the polls, in any way that an
>> ID law could fix.
>>
>> So far, I’ve found about 31 different incidents (some of
>> which involve multiple ballots) since 2000, anywhere in the
>> country. If you want to check my work, you can read a
>> comprehensive list of the incidents below.
>>
>> To put this in perspective, the 31 incidents below come in
>> the context of general, primary, special, and municipal
>> elections from 2000 through 2014. In general and primary
>> elections alone, more than 1 billion ballots
>> <http://www.fec.gov/general/library.shtml> were cast in that
>> period.
>>
>> Some of these 31 incidents have been thoroughly investigated
>> (including some prosecutions). But many have not. Based on
>> how other claims have turned out, I’d bet that some of the 31
>> will end up debunked: a problem with matching people from one
>> big computer list to another, or a data entry error, or
>> confusion between two different people with the same name, or
>> someone signing in on the wrong line of a pollbook.
>>
>> Posted in election administration
>> <http://electionlawblog.org/?cat=18>, fraudulent fraud squad
>> <http://electionlawblog.org/?cat=8>, The Voting Wars
>> <http://electionlawblog.org/?cat=60>, voter id
>> <http://electionlawblog.org/?cat=9>
>>
>>
>
>
>
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