[EL] Incidents of fraud ID is designed to stop

[Schultz, David A.]

Doug's point is well taken.  There is no such thing as a perfect election
with 0% error.  Mistakes happen.  People think they can vote but are not
eligible.  Some forget they voted and try again or people just get
confused.  The same is also true with election officials.   There is a
difference between fraud (remember actus reus + mens rea?) and mistakes.
Mistake is not fraud and what so many frauders (read as equivalent to
"birthers") do is to ascribe all instances of mistake as instances fraud.
Finally, as I again note in my book there is a difference between voter
fraud and election official fraud.

I can think of many situations besides taxes where small errors that do not
matter do not count as fraud.  I taught welfare policy for years and there
were clear cases where individuals received AFDC improperly not because of
fraud but because a public official mistakenly ruled their eligible.  Also,
courts of appeal routinely refer to harmless errors made in trials.  Not
all mistakes are grounds for reversal.


On Thu, Aug 7, 2014 at 9:27 AM, Hess, Doug <HESSDOUG at grinnell.edu> wrote:

> It seems to me that the focus should be on fraud that has a chance of
> resulting in a ballot that shouldn't be cast. (Or for policy implications,
> fraud that could influence an election, which needs to be weighed against
> barriers to prevent fraud that could influence an election). For example,
> we know why registration forms were mailed to non-persons (lists of some
> kind were purchased where people had submitted a fake, or pet's, name).
> These didn't, on their own, generate fraudulent registrations or votes. And
> if they did lead to somebody submitting fraudulent registrations, that is
> where the focus should lie.
>
> I assume many errors and "guesses" are made on tax forms each year. In
> fact, if you look over several years of tax forms for anybody filing an
> even slightly complex taxes, I would bet you could find mistakes. But is it
> fraud?
>
> What about all the signatures on candidates' petitions? The rule,
> generally, is that you need to collect far more signatures than you need
> (20% or more, some say), because of the all the mistakes made. Leaving out
> the real possibility of many signatures being faked by those gathering
> them, many of the signatures were well intentioned but broke the rules. I
> wouldn't say that's fraud (analogous to some of your "is it fraud..."
> examples).
>
> Doug
>
> Douglas R. Hess
> Assistant Professor of Political Science
> Grinnell College
> Carnegie Hall #302
> 1210 Park Street
> Grinnell, Iowa 50112
> Office: 641-269-4383
> http://www.grinnell.edu/users/hessdoug
>
> ====
>
> Message: 12
> Date: Wed, 6 Aug 2014 14:24:31 -0400 (EDT)
> From: BZall at aol.com
> To: levittj at lls.edu, law-election at department-lists.uci.edu
> Subject: Re: [EL] Incidents of fraud ID is designed to stop
> Message-ID: <52936.6a16b438.4113ccde at aol.com>
> Content-Type: text/plain; charset="utf-8"
>
> 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
>
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-- 
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
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My latest book:  Election Law and Democratic Theory, Ashgate Publishing
http://www.ashgate.com/isbn/9780754675433
FacultyRow SuperProfessor, 2012, 2013
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