Subject: Re: Mehlman pushes storyline that Democrats commit vote fraud
From: Rick Hasen
Date: 6/11/2006, 10:00 PM
To: "Smith, Brad" <BSmith@law.capital.edu>
CC: election-law@majordomo.lls.edu

Brad,

I think you missed my point, which is that partisan bias in election administration since 2000 (think Katherine Harris (not to mention the 2000 Florida attorney general, Bob Butterworth), Ken Blackwell, Kevin Shelley, and others) as well as reports of mechanical snafus in the wake of the revamping of election machinery post-Florida, have caused significant portions of the the public to become very skeptical about the fairness and accuracy of election administration.  Nationally, many more Democrats are skeptical than Republicans, but the pattern is the opposite in Washington state, which saw a closely contested gubernatorial election end up with a Democratic winner.  Public confidence is so low that even claims of malfeasance in places that have had good reputations like San Diego are taken seriously in some quarters.

I don't think it is true, if you look to other countries, that "nonpartisan, professional" election administrators have been attacked ("legitimately" or otherwise) by whichever side loses.  I think there is a value in both nonpartisanship and professionalism when it comes to election administration, not only in assuring public confidence in the accuracy of election results, but in assuring the accuracy of those results itself.  This is not just an "appearance of corruption" type problem. 

Part of the reason I have faith in election administration being done in a nonpartisan and professional way is that I think if you and I sat down we could agree upon a set of fair election administration rules in advance, while we likely could not sit down and agree on a set of fair campaign finance or redistricting rules.  In other words, I think that there are some basic principles of fair election administration for which there is widespread consensus.  (I'd point you to the IDEA code of conduct, referenced in my Washington and Lee article.)

Rick

Smith, Brad wrote:
If California has had a "very good reputation for nonpartisanship and professionalization," wouldn't that suggest that, "more nonpartisan professionalized election administration systems" are unlikely to make a difference?
 
I doubt that the problem has as much to do with who administers elections  than with the disposition of partisans to want to claim election fraud.  "Nonpartisan, professional" is another way of describing a person who can be legitimately attacked by whichever side loses.  Heck, we have already seen partisans attacking election officials of their own party.  And we have the relatively new phenomenon of major party leaders and candidates stoking, rather than calming, the fears of the most crackpot conspiracy theorists.  
 
I think that partisanship is working to create the appearance that our elections are substantially and regularly unreliable and rife with fraud; and this appearance, which is far different from the reality, leads to hasty and unwise laws.  Again, I can't help but notice the similarity with campaign finance laws - once appearances become more important than reality, we have a prescription for bad public policy and disregard for the rights of the public.  
 
I would not be at all surprised if nonpartisan election administration increases distrust of the electoral process, just as public perception of corruption in office has correspondingly grown with the imposition of an increasingly complicated web of "ethics" rules, lobbying restrictions, and campaign finance laws.
 
Brad Smith

________________________________

From: owner-election-law_gl@majordomo.lls.edu on behalf of Rick Hasen
Sent: Sat 6/10/2006 2:04 PM
To: Michael McDonald
Cc: election-law@majordomo.lls.edu
Subject: Re: Mehlman pushes storyline that Democrats commit vote fraud


It is worth pointing out that some on the left too are looking to use the Bilbray-Busby race as proof of fraud (or potential fraud) in the electoral process:

http://www.bradblog.com/archives/00002924.htm

This pattern of partisans trying to raise questions about the fairness of the electoral process is something I expect to continue until we see more moves toward creating more nonpartisan professionalized election administration systems.  It is especially troubling in this instance because local election administration in California has, at least until recently, had a very good reputation for nonpartisanship and professionalization.  

Rick

Michael McDonald wrote: 

	I thought this would be of interest:
	
	In the wake of the Busby defeat in California's 50th district, Republican
	chair Ken Mehlman pushed the storyline on Hardball that Busby encouraged
	illegal immigrants to vote in the special election, and tied the claim to
	Democrat Gregoire's victory in the Washington recount case.
	
	For a transcript see: http://mediamatters.org/items/200606090002 (for the
	conservatives on the list, my apologies for linking to a left-leaning web
	site.)
	
	A few points here:
	
	1. A fair reading of Busby's controversial comment that "you don't need
	papers to vote" is that she mispoke and corrected herself in the next
	sentence to say that you don't have to be a citizen to volunteer for a
	campaign.  From my vantage of teaching a campaigns class in Washington DC at
	a school with many foreign nationals, I have known non-citizen students who
	worked on Democratic and Republican campaigns.  I'll be curious to hear the
	opinion of those on the list if the campaign activity represents an illegal
	political donation from a foreign national.  Was Busby promoting illegal
	activity?
	
	2. To my knowledge, there is no evidence that any fradulent votes were cast
	in the California special election.  There is, to my knowledge, no
	investigation underway to determine if Busby's campaign orchestrated the
	casting of fradulent votes.  Perhaps someone knows something different?
	
	3. With regards to the Washinton recount case, there were inleigible felons
	and a husband of a deceased women who testified that their illegal votes
	went to Rossi, the Republican candidate.  There is no evidence that
	Gregoire's campaign knowlingly solicited illegal votes.
	
	I'm sure we can all see where this is leading: we need photo identification
	at the polls to prevent Democrats from stealing elections using illegal
	immigrants.  I'm sure that we're going to hear more of this as the election
	approaches.  Chris Matthews can be expected to promote this kind of
	rhetoric, but I am disappointed that Charile Cook (the third guest on the
	show, and typical of the cable talk shows, he was apparently there to
	provide "balance" to Mehlman) didn't interject a more reasoned response.
	
	------------
	Dr. Michael P. McDonald 
	Assistant Professor, George Mason University 
	Visiting Fellow, Brookings Institution
	
	                          Mailing address: 
	(o) 703-993-4191          George Mason University 
	(f) 703-993-1399          Dept. of Public and International Affairs
	mmcdon@gmu.edu            4400 University Drive - 3F4 
	http://elections.gmu.edu  Fairfax, VA 22030-4444
	
	
	
	
	
	  


  

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org