Subject: Re: [EL] Latinos for Voter Suppression of Other Latinos?
From: Jeff Patch
Date: 10/19/2010, 8:48 PM
To: 'Rick Hasen' <rick.hasen@lls.edu>
CC: 'Election Law' <election-law@mailman.lls.edu>

As I noted to Rick, I was simply acknowledging the racial sensitivity of the issue, not accusing Rick—who is a fair and above-board guy—of calling me a racist.

 

Rick seems to be splitting hairs. My point responding to David Epstein was that the group was headed by prominent Hispanic conservatives.  Yes, I could have been more precise. de Posada seems to be an earnest person who has been involved in politics and immigration issues for a long time. If Karl Rove formed a group and ran ads in various states called “Latinos for Reform” urging Hispanics not to vote, the voter suppression charges would be more salient.

 

Many people who care about gay rights and donate to LGBT groups are not gay, yet their support is not suspect because of that. There are legitimate arguments about the timeliness of disclosure, but the notion that this guy is some sort of shill because he accepts donations from non-Hispanics seems like a great example to me of why people are concerned about balancing the retaliatory costs of disclosure with its informational benefits.

 

From: Rick Hasen [mailto:rick.hasen@lls.edu]
Sent: Tuesday, October 19, 2010 11:40 PM
To: Jeff Patch
Cc: 'Election Law'
Subject: Re: [EL] Latinos for Voter Suppression of Other Latinos?

 

First and foremost, Jeff, I don't consider you to be making a racist argument at all.   So let's take that off the table.

Why does it matter if there are not a lot of Latinos involved with the group, and if its largest supporter in 2008 was apparently not a Latino?  It is because the group is called "Latinos for Reform," which implies there are a group of Latinos behind it.  I'm skeptical.  And given the slowness of disclosures of 527 organizations, we'll have to wait a while to find out.  It was also relevant when, in response to David Epstein, you described the group as one of "prominent Hispanic conservatives."  Not sure that's the case.

But this is yet another great illustration in my view as to why full, complete, and quick disclosure (except in cases of as-applied exemptions) is so important.  As I've argued on many occasions, busy voters care not only about the message but about who is sending it.  And if it turned out that "Latinos for Reform" was mostly a bunch of white pro-life Republicans from out of state, Nevada's Latino voters might judge that message differently.

And I'd like to think I'd be making the same arguments if a supporter of Harry Reid urged some people not to vote.

Of course, the irony is that this election may be influenced by how many voters (who dislike both Reid and Angle) choose "none of the above."



On 10/19/2010 8:29 PM, Jeff Patch wrote:

[responding to various posts]

 

I was hesitant to even make this argument because I was concerned people would perceive it as racist. Nonetheless, it seems like this group is being unfairly tarred, and to assume a group of Republican Hispanics is racist because they seek to target their fellow constituency seems unfounded.

 

I take the leader of the group at his word when he says he does indeed intend to sway voters not to vote (though he’s not likely to be successful). Nonetheless, I know nothing about the guy, Robert de Posada, beyond what I’ve read about him via Google, even though his post office is four blocks away. He may turn out to be shadier than I thought. Univision seemed to think he was legitimate enough to bring on relatively frequently as a commentator.

 

I should have been more clear that the leaders of the group were foolish at best if they didn’t anticipate this controversy. I’ve said the ad would have been more effective if it urged a different method of voting protest, such as a write-in, but I think Rick is probably correct that this is about publicity for the group (and it has certainly amplified its reach from a $150K buy on a Hispanic TV network).

 

As to Lori’s comment that voter suppression can be effective in close races, I don’t dispute that. However, I’d argue that this ad is just as likely—if not more likely—to increase turnout among Hispanics (and Democrats) due to outrage over the ad.

 

I’m not sure what’s remarkable about Rick’s information about the funders of the group. A lot of Republican consultants involved with IEs have been tarred with guilt-by-association links to the SwiftBoaters and the guy is a former colleague of Dick Armey and a former director of Hispanic affairs at the RNC. Regarding Rick’s question as to whether or not I have the names of any of the other Latinos for Reform people, I do not, nor do I really understand why that’s relevant (along with Rick’s observation that a donor—Finn—does not seem to be Latino). Plenty of Republicans are concerned about liberalizing immigration laws, and I doubt Rick would care if some wealthy, white liberal gave money to a liberal immigration group focused on Hispanics.

 

I’m not really all that familiar with election law beyond campaign finance, but it seems to me that the justification for banning people from paying others not to vote is similar to the justification for banning people from paying people to vote. Nonetheless, urging people to vote is encouraged (I’m not saying urging people not to vote should be encouraged, just that it’s understandable as a protest and seems much different/less objectionable than paying people not to vote). The pernicious thing about paying people not to vote is that it offers a powerful, tangible incentive, even more so to the poor, not to vote. Urging someone in an ad to do this provides no such incentive, which was my point—that such IEs as this are not corrupting or even all that persuasive.

 

If the ad had been a spot from a fringe liberal group urging Nevadans not to vote because Harry Reid has failed on immigration issues and Sharron Angle is batshit crazy, barely anyone would have batted an eye. Nonetheless, an ad from a Republican group with the exact same message, micro-targeted in a pretty basic way, has ignited a national controversy.

 

Jeff

 

From: Rick Hasen [mailto:rick.hasen@lls.edu]
Sent: Tuesday, October 19, 2010 10:51 PM
To: Jeff Patch
Cc: 'Election Law'
Subject: Re: [EL] Latinos for Voter Suppression of Other Latinos?

 

I don't have time for a full reply now.  But let me confirm that yes, indeed, I meant astounding in a decidedly negative way.  I'd have to go back to look, but I believe that every state's voting law makes it illegal to pay people not to vote.  That law seems to reflect a broad social consensus against paying to suppress turnout.  (In contrast, state laws are mixed about payment for turnout.) 

Just like it is illegal to pay people not to vote, it seems objectionable to urge people not to do so---and even worse when it is targeted at a particular group of people. 
 As far as whether someone of a particular race or ethnicity could be biased against that very same race or ethnicity, certainly that's the case with some people. 

I think you are on more solid ground when you say that this ad is not likely to sway many voters not to vote.  But that certainly seems its intent.  (That, or getting publicity for the group or person running the ad.) 

On 10/19/2010 6:25 PM, Jeff Patch wrote:

Rick refers to the message of the rejected Latinos for Reform ad, which urges Hispanics to stay home in November in protest of the Democrats’ lack of action on immigration reform, as “astounding.”

 

My interpretation of his comments is that he perceives this proposed ad campaign as “astounding” in a decidedly negative way, akin to vote suppression by passing out flyers in an African American neighborhood with the wrong Election Day listed. Perhaps I’m wrong, but I got that impression from the link he selected, which referred to the ad as an effort to “suppress the vote of various racial minorities.” Sen. Majority Leader Harry Reid has also referred to the ad as “an example of “Hispanic voter suppression.” A Las Vegas-based Hispanic group claimed that “[t]hey are trying to take away our privileged right to vote through scare tactics and fear mongering.”

 

Univision, a private business, has every right to decline to air the ad, despite its dominant position in reaching Hispanic audience. A few points/questions, though:

 

(1) The group is run by prominent Hispanic conservatives who have been involved in immigration reform for years. It’s pretty hard to see some sort of a racist motive here, no?

 

(2) The premise of this ad as a voter suppression tool seems—like most efforts to characterize independent ads as somehow corrupting or nefarious—to be that Latino voters are so gullible that they can be lured by the ad’s Siren call into not voting.

 

There’s certainly no intent on the part of the ad’s critics to imply that Latinos cannot decide for themselves how to vote, but the suggestion that the ad is reprehensible implies that people are too dim to decide political matters on their own when faced with controversial—or even misleading—advertising. That strikes me as pretty condescending toward the democratic process.

 

(3) Removing a potential racial motive, this tactic  seems perfectly legitimate. I’m a libertarian. In 2008 I did not vote, partly because of an absentee ballot snafu. But I ended up not remedying the mix-up because I was frustrated with McCain’s general election campaign even after spending three months volunteering for the primary campaign in various states. As a rational person, I’m aware my vote didn’t matter, but I don’t understand why it’s illegitimate for a group to urge people to not vote if a political party or candidate fails to act on their issues.

 

Perhaps this ad would have been less controversial if it urged Hispanics to write-in someone or vote third party, but that’s a bit more of a complicated message. But, I’m wondering if Rick would feel the same way if, in 2012, NORML ran ads in California asking marijuana users not to vote because no Democrats supported Prop. 19—or is there something specifically objectionable about an ad targeting a certain ethnic constituency of voters?

 

Jeff Patch

 

From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Rick Hasen
Sent: Tuesday, October 19, 2010 12:11 AM
To: Election Law
Subject: [EL] Electionlawblog news and commentary 10/19/10

October 18, 2010

"Don't Vote This November"

That's the astounding message of an ad from "Latinos for Reform." Here's an NPR story on the group from 2008. Here's the group's press release about the new ad. The most recent filing of this 527 organization is not illuminating. Here's some 2008 financial information.

Posted by Rick Hasen at 09:01 PM

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

 

--
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