I see - the problem was that Indiana admitted that they had no real proof of corruption.  They'll be smarter next time. 
 
Anyway, I think it's fairly easy to argue that many Americans think elections are being tainted by fraud, and think a photo ID requirement would address that.  It is vital that people have confidence in government, of course.  No, I think this decision might properly be dubbed "Reform Stew." 

________________________________

From: Trevor Potter [mailto:TP@Capdale.com]
Sent: Tue 4/18/2006 8:27 PM
To: Smith, Brad; election-law@majordomo.lls.edu
Subject: RE: Indiana evidence




Isn't the point David Becker is making the opposite of the arguments made by BCRA's defenders (which is presumably what Brad is alluding to)? In Indiana everyone apparently admitted there was no corruption or appearance of corruption--just a theoretical possibility of corruption. In BCRA the Court record was full of literally thousands of pages of the appearance of corruption, with a string of expert testimony and affidavits to the effect the appearance existed. Brad and others may disagree that the evidence proved corruption, but they can't gainsay its existence--which David Becker claims CAN be said about the Indiana record...

-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu [mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Smith, Brad
Sent: Tuesday, April 18, 2006 7:49 PM
To: election-law@majordomo.lls.edu
Subject: RE: Indiana evidence


I wonder if this has anyone rethinking their support for the old "appearance of corruption" standard?


Bradley A. Smith
Professor of Law
Capital University Law School
Columbus, OH

________________________________

From: owner-election-law_gl@majordomo.lls.edu on behalf of David J. Becker
Sent: Tue 4/18/2006 6:31 PM
To: 'Jason Torchinsky'; 'Rick Hasen'; election-law@majordomo.lls.edu
Subject: RE: Indiana evidence



I don't want to put words in Rick's mouth, but what I think he's referring to, and what is very troublesome about the court's opinion in the Indiana case (among other things) is that there is absolutely not one shred of evidence of a single instance of voter impersonation fraud occurring in the history of the state of Indiana.  Indeed, the defendants in the Indiana case conceded that no voter impersonation at the polls has ever occurred in the state, and fraud has only occurred in the absentee ballot process, which is expressly excluded from the photo ID requirement.  From the court's opinion:




Defendants concede that "the State of Indiana is not aware of any incidents or

person attempting vote, or voting, at a voting place with fraudulent or otherwise false

identification." ICLU Ex. 18 ("MCEB's Response to Interrogatories") at ¦ 2. Plaintiffs

further note that no voter in Indiana history has ever been formally charged with any sort

of crime related to impersonating someone else for purposes of voting. King Dep. at 95.

Plaintiffs submitted testimony from several veteran poll watchers who confirmed they

have never seen any instances of attempted in-person voter fraud in Indiana. See Haith

Aff. at ¦ 17; Crawford Dep. at 45 and Ex. B at 10; Bohannan Dep. Ex. H at 12. Plaintiffs

further contend that no evidence of in-person voting fraud was presented to the Indiana

General Assembly during the legislative process leading up to the enactment of SEA 483.

See Mahern Aff. ¦¦ 2-3. Plaintiffs do note, however, there is evidence of absentee voter

fraud in Indiana and that pervasive fraud regarding absentee balloting led the Indiana

Supreme Court recently to vacate the results of the mayoral election in East Chicago. See

Pabey v. Pastrick, 816 N.E.2d 1138 (Ind. 2004).




Opinion, pp. 21-22.  Indeed, even the evidence of alleged national voter impersonation fraud (outside of Indiana) that the court cites is all absentee ballot fraud, with the exception of one anecdotal instance in 1994 which allegedly occurred in California, and the sole evidence which the court cited for even this one instance is a paraphrase from the Sabato-Simpson book (no direct evidence).




Thus, it is very troubling that the court could find that the imposition upon in-person voters of the photo ID requirement, for the alleged governmental purpose of combating fraud, could even satisfy the rational basis test, based on the complete failure of the state's evidence to link the law to preventing any fraud whatsoever (and indeed, conceding this point).  The "separate but equal" formulation of Indiana's (and Georgia's and other states') photo ID advocates, where absentees are treated very differently from in-person voters, upon whom much greater burdens are placed, is not an "incremental" approach to combating fraud, as some have suggested, as it does zero to prevent a single incidence of fraud in states like Indiana and Georgia.  Rather, this legislation provides those who would seek to commit voter impersonation fraud a clear and easy road map for the undetectable commission of such fraud, through the absentee ballot process.  For those of us who think that ballo!
 !  t integrity and increased voter access are not mutually exclusive, and value both, such legislation is not only counter-productive, but exacerbates the electoral problems in this country.




There are other problems with the Indiana court's opinion, including an overly personal, strident tone (I don't know where this comes from, and maybe someone involved with the litigation has some insight, but the judge almost seemed really ticked off in the opinion, taking unwarranted personal swipes at some of the litigants and experts), and a complete dismissal of the potential for voters to be actually disenfranchised by the law (which will rectify itself soon enough, sadly, when thousands of voters will verifiably be disenfranchised during the next election), all of which give plaintiffs plenty to work with on appeal.




David J. Becker

Election Consultant and Voting Rights Attorney

(202) 550-3470

(202) 521-4040 fax

david.j.becker@electionconsulting.com <mailto:david.j.becker@electionconsulting.com>


www.electionconsulting.com

________________________________

From: owner-election-law_gl@majordomo.lls.edu [mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Jason Torchinsky
Sent: Tuesday, April 18, 2006 3:39 PM
To: Rick Hasen; election-law@majordomo.lls.edu
Subject: Indiana evidence




All,




  I'm curious about Rick's comment below on the Indiana litigation.  Given the number of plaintiffs in the Indiana litigation and the number of lawyers involved, don't you think that they did their best to put the best evidence they could muster before the judge?  What additional evidence do you think is out there the plaintiffs could have submitted but failed to submit?





 - Jason Torchinsky

















Another view of the Indiana Voter ID decision


Following up on this post <http://electionlawblog.org/archives/005418.html> , Brett Bellmore writes via e-email:

I've now had a chance to read the ruling, and it does not appear to be based on the judge's belief that ID fraud is a more serious problem than absentee ballot fraud, but instead his (I think quite reasonable) belief that the whole question of which is more serious is utterly irrelevant, since the legislature is perfectly entitled as a constitutional matter to address small problems, and leave big problems untouched.

I tend to agree that absentee ballot fraud is the bigger problem. On the other hand, that also means that it has more defenders, and going after it will be a bigger fight. Maybe voter ID will be a good warmup for that battle royal.

Brett Bellmore



I still have not had a chance to read the ruling in any more detail, but I do think some of it may be a function of the judge's belief that the Democratic lawyers did not present enough evidence to support the arguments they made in their brief. I wonder if more evidence would have mattered here.




















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