[EL] Why Voter Impersonation is Undercounted
BZall at aol.com
BZall at aol.com
Thu May 1 11:28:25 PDT 2014
Sigh. About once a year or so, I wade into this area of the existence of
voter impersonation. Let me begin by saying that I have the utmost respect
for both Rick and Justin, but I generally note that it is important to avoid
confirmation bias in this analysis. Bottom line: unless you look at WHY you
can't find the data, you're unlikely to see whether there's an indication
that something is present or not. If you cut off debate on this point, by
claiming that the issue is closed beyond any further discussion ("give up
the ghost"), you're unlikely to present a truly persuasive case.
The claim is that evidence of "voter impersonation" fraud is lacking. But
I found quite a bit, without a lot of deep diving, in a state with a very
close election that year, and provided it in an amicus brief in Crawford.
http://moritzlaw.osu.edu/electionlaw/litigation/documents/Rokita-Briefamicuscu
riaofAmUnity.pdf
An excerpt:
I. “IN-PERSON VOTER IMPERSONATION FRAUD” DOES EXIST.
Petitioners, for example, assert that “there is no evidence whatsoever
that a single person in Indiana has ever come to the polls on Election Day and
tried to vote under the name of a person who already had voted.” IBP Br.,
at 43. Perhaps that is true about evidence in Indiana, “for remember that
it is difficult to detect.” Crawford, 472 F.3d at 954. It is not true
elsewhere, where voter impersonation is a matter of public record.
The Seventh Circuit said that voter impersonation would be likely detected
when “the impersonated person . . . voted already when the impersonator
arrived and tried to vote in his name.” 472 F.3d at 953. This is not the only
way in which voter impersonation could be detected, and likely represents
a lesser concern because the real vote itself might not be lost.
In fact, a more troubling version happened – repeatedly – in Albuquerque,
New Mexico, in 2004: the impersonated, “real” persons arrived and could
not vote after the impersonators had voted earlier. The difference between
the two detection methods is that, in Albuquerque, the miscreants were long
gone, and the votes cast by the actual voter were not counted. There could
be no prosecution, but the harm to the individual voter victims is
apparent.
Amicus does not suggest that Albuquerque and New Mexico are particularly
prone to election fraud. This is simply the first place amicus applied its
limited research resources to the available cases.
Both Petitioners cite in passing Women Voters of Albuquerque/Bernalilo
County, Inc., v. Santillanes, 506 F.Supp.2d 598 (D.N.M. 2007), appeal
pending, No. 07-2067 (10th Cir. 2007)._[1]_
(aoldb://mail/write/template.htm#_ftn1) Crawford Br., at 48; IDP Br., at 49. Petitioners cite Santillanes for
the proposition that voter impersonation does not exist. Id. Yet at least
one clear instance of voter impersonation is referenced in Santillanes, but
the opinion must be supplemented to disclose the impersonation.
Judge Armijo noted in Santillanes that “[w]ith respect to the City's
narrower interest in preventing people from impersonating another voter at the
polls in order to steal their vote, there is no admissible evidence in the
record that such voter impersonation fraud has occurred with any frequency
in past municipal elections.” 506 F.Supp.2d at 637 (emphasis added). She
did note that the ordinance in that case was stimulated, at least in part, by
reports of such fraud in the 2004 Presidential election, but said that the
details of such reports had not been presented to her. Id.
One reason for the lack of “evidence in the record” is that Judge Armijo
did not permit such evidence to be presented to her. In Footnote 3 of the
decision, Judge Armijo notes that she denied a motion to intervene by, inter
alia, Dwight Adkins. 506 F.Supp.2d at 608 n. 3. In her unpublished
memorandum opinion denying intervention, Judge Armijo found that the intervention
motion was not filed timely. American Civil Liberties Union of New Mexico
v. Santillanes, No. 1:05-cv-01136-MCA-WDS, Doc. 42, slip op., at 11 (D.N.M.,
July 12, 2006)._[2]_ (aoldb://mail/write/template.htm#_ftn2)
Judge Armijo’s decision notes only that Dwight Adkins, one of the
individuals who moved to intervene, “claims he was deprived of his vote in 2004.”
Id., at 7. In his Motion to Intervene, however, Mr. Adkins stated that “
[i]n the 2004 election, his vote was stolen by someone who voted in his place.
Mr. Adkins was ‘allowed’ to cast a provisional ballot, but he was
informed that it was not counted.” Santillanes, No. 1:05-cv-01136-MCA-WDS, Doc.
33, at 3 (D.N.M. June 13, 2006).
More detail is available in Congressional testimony. A few days after
filing his Motion to Intervene, Mr. Adkins’s counsel explained to the Committee
on House Administration that Mr. Adkins sought to intervene because “[h]e
was not allowed to vote when he appeared at his polling place because
someone had voted fraudulently in his place. His ‘provisional ballot’ was cast
and denied on the basis, he was told, that he had already voted. Rosemary
McGee of Albuquerque suffered the same fate.” Comm. on House Administration,
Testimony of Mr. Patrick Rogers, June 22, 2006, available at
http://cha.house.gov/index.php?option=com_content&
task=view&id=75&Itemid=41.
Mrs. Vicki Perea, a former Albuquerque City Council member, also
testified: “Rosemary McGee is a Bernalillo County voter who tried to vote on
Election Day in 2004, only to find that someone else had signed the voting roster
in her place earlier in the day (and spelled her name wrong).” Comm. on
House Administration, Testimony of Mrs. Vicki Perea, June 22, 2006, available
at
http://cha.house.gov/index.php?option=com_content&task=view&id=102&Itemid=41. Mrs. Perea showed the voting roster to the Committee: “You can see
the voting roster on this slide, with Rosemary's actual signature on the
bottom, and the signature of the person who voted in her place at the top.” Id.
Another report indicates that Ms. McGee appeared at the polling place at
3:00PM and found that the impersonator had voted at 7:00AM the same day.
Prof. John Lott, “John Fund on the Voting Process in New Mexico,” November
10, 2004, available at http://johnrlott.blogspot.com/2004/11/john-fund-on-
voting-process-in-new.html. The time is important, because under New
Mexico rules, the earlier, impostor’s vote was counted, not the later “real”
vote. Id.
It is also important to note that not only were the signatures visibly
different, but the voter’s name was mis-spelled. Whatever safeguards were in
place to protect against impersonation did not work.
Nor were Mr. Adkins and Ms. McGee the only persons whose votes were
physically impersonated by in-person fraud that day; at least four other
Albuquerque voters were impersonated. Vickie Perea, “Candidate for State Treasurer,”
Albuquerque Tribune, October 10, 2006, available at
http://www.abqtrib.com/news/2006/oct/10/vickie-perea-republican/. These were just the frauds
which were detected, and all these detections were after the fact. No
prosecutions resulted.
____________________________________
_[1]_ (aoldb://mail/write/template.htm#_ftnref1) Santillanes involves the
same issue as this case – the constitutionality of a voter identification
requirement – and Judge Armijo distinguished the lower court opinions here
in striking down a city’s voter ID requirement. 506 F.Supp.2d at 638.
_[2]_ (aoldb://mail/write/template.htm#_ftnref2) Curiously, this motion
and Order do not appear in the comprehensive listing of case materials made
publicly available by the Moritz School of Law at The Ohio State University.
See, e.g.,
http://moritzlaw.osu.edu/electionlaw/litigation/aclunewmexico.php. They are available, however, through PACER.
Justin, to his credit, I believe still counts these several instances as
some of his "credible" instances of voter impersonation. That is, these are
not explainable by the usual "oh, it must have been a mistake," or "someone
signed on the wrong line." And is it any better that someone was not
allowed to vote and had their provisional ballot denied because of a "mistake"
and not "fraud?" Or maybe that it wasn't enough to turn an election? Or that
we can show only a few and not a "conspiracy?" Guess it depends on your
purpose for defining "fraud."
And is it really justifiable to simply separate voter registration fraud
from some other types of voter fraud? Another excerpt, based in part on a
New York Times article, deals with the voter impersonation aspects of voter
registration fraud:
Some of these incidents involve outright forgery of ballot materials.
Diane Taylor, for example, was convicted of vote fraud for simply forging voter
registrations in the name of her three teenage children. KRQE-TV 13, “Rep.
Pearce Mingles with Vote Fraud Figure,” September 2007, available at:
http://www.krqe.com/Global/story.asp?S=7113367 Had Taylor received the absentee
ballots she requested, she likely would have voted them in an instance of
voter impersonation, but it appears that Mrs. Taylor was caught before
voting. Nevertheless, her fraud was classed as voting registration-related
because it was caught before she actually cast her sons’ absentee ballots.
But other similar child impersonations in Albuquerque could easily have
led to undetectable in-person voting fraud similar to that which affected the
six voters described above. “The first whiff of something suspicious came
when a 15-year-old boy received a voter registration card in the mail. Soon
a second one arrived. Then his 13-year-old neighbor got one, too. Neither
boy had applied for the cards, and it looked as if their signatures and
birthdates had been forged.” Drew and Lipton, [Christopher Drew and Eric
Lipton, “G.O.P. Anger in Swing State Eased Attorney’s Exit,” The New York
Times, March 18, 2007, available at
http://www.nytimes.com/2007/03/18/washington/18attorneys.html?_r=1&oref=slogin]. “Local election officials said the
cards sent to the two teenage boys were among about 3,000 faulty
registrations, with some most likely resulting from mistakes and others raising more
questions.” Id.
This voter (or, in this case, non-voter) impersonation fraud would likely
not have been detected by conventional means, since the children would not
go to the polling place, and there would be no discrepancy between
signatures on the registration and the voting roll. There would have been little or
no risk of detection if the same fraudulent voter didn’t go to the same
polling place too frequently.
“In counting the first 5,000 provisional ballots in Bernalillo County,
observers turned up 53 instances of individuals voting more than once.” Lott,
supra. “Double voting appears to fall into two categories: voters who
themselves may have voted multiple times, and those whose votes were essentially
stolen.” Id. This is an “error” rate in provisional ballots of more than
one per cent. This error rate is significant in a state of over a million
registered voters, but where George W. Bush lost the Presidential contest to
Al Gore by 366 votes in 2000. Drew & Lipton, supra.
This type of impersonation has occurred recently in other elections. On
October 25, 2006, United Press International reported that “[h]undreds of
bogus address changes have surfaced near St. Louis and the election board is
warning voters to make sure they get a polling-place notification card. If
the card does not show up, a voter’s address may have been fraudulently
changed, the county elections director said.” UPI, “Bogus voter-address
changes in St. Louis,” Oct. 25, 2006, available at
http://www.upi.com/NewsTrack/Top_News/2006/
10/25/bogus_voteraddress_changes_in_st_louis/3201. “Tom Stanislawski
registered to vote six years ago. But this summer, someone signed him up again
and changed his party affiliation. ‘My concern would be I’d walk in
November 2nd and be unable to vote,’ he said.” Hang Right Politics, “The ACORN
doesn’t fall far from the tree,” Oct. 26, 2006, available at:
http://hangrightpolitics.com/2006/10/26/the‑acorn‑doesnt‑fall‑far‑from‑the‑tree/.
Some might argue that these were mere administrative errors and that
impersonations did not “occur[] with any frequency in past municipal elections.”
Santillanes, 506 F.Supp.2d at 637. Nevertheless, the Seventh Circuit’s
analysis – that such crimes do occur but are hard to detect – seems to be
borne out by the public record in at least some places. Even worse, the
flawed belief that voter impersonation “does not exist” may have other
consequences, including, for example, insufficient attention to activities which
could increase the risk of voter impersonation and other fraudulent
activities, as shown in more detail below.
You can't easily dismiss instances such as these by selectively defining
away the elements necessary to find the problem. The RNLA blog post (which
I didn't even know about until I read this squib) has to do with just that
kind of selective definition. "News21 narrowly defined terms like “voter
impersonation” based on definitions Lorraine Minnite employed."
Voter I.D. may not be perfect, but in an era when mistakes are made, the
real question is whether it does add something to the security of the voting
process (that is worth the burden it may impose if not done correctly).
That is, at least, a subject for reasonable debate, and does not justify a
demand for cloture on the basis of "under MY definition, there's no problem."
So can we please cool the attacks on RNLA, at least until the "myth" is
shown NOT to be from distortion of the results by definitional bias? They
might be missing the point, but they also might not be.
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
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_RNLA Goes After News21, “Vote Fraud Deniers;” A Brief Response_
(http://electionlawblog.org/?p=61085)
Posted on _May 1, 2014 8:45 am_ (http://electionlawblog.org/?p=61085) by
_Rick Hasen_ (http://electionlawblog.org/?author=3)
_Blog post here_
(http://thereplawyer.blogspot.com/2014/05/the-left-use-of-old-biased-reports-to.html) .
Where to begin?
1. I’ve explained why attacks on the News21 methodology have _missed the
forest for the trees_
(http://blogs.reuters.com/great-debate/2014/04/30/exorcising-the-voter-fraud-ghost/) . No doubt the News21 methodology undercounts
some prosecutions for voter fraud, but what matters is what it shows
comparatively. There’s no reason to believe that impersonation fraud
prosecutions would be undercounted.
2. Justin Levitt has been collecting all reported cases he can find of
credible voter impersonation fraud claims since 2000. He’s up to 20 possible
cases. And no conspiracies (since at least 1980) that I can idenfity of any
kind where voter fraud impersonation was used to dupe election officials
and steal an election. That compares to absentee ballot fraud cases every
year which sometimes affect the outcome of elections.
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