Based on private e-mails I’ve received, including one encouraging me to be persistent, I believe a few people are still awake.  Anyway, the delete button has not moved and this time I’ll be pretty brief.

 

1.      I share your ambivalence about handing out doughnuts, etc., for voting.  I’m probably more negative on cash payments.  But we’re not too far apart on that question.

 

2.      Robert Braucher, my Contracts professor, told us to be alert when we see the word “obviously,” because what follows will probably be a lie.  It is reasonable to extend the principle to the word “clearly,” so your criticism of my use of the word is just.  But despite my hyperbole, I did not rely on a bare assertion.  The following five paragraphs gave my reasons for believing advocacy of non-voting is not in the same category.

 

3.      As an empirical matter, I think in the long term society will be far more affected by whether religion stands or falls than by increases or decreases in voter turnout.  I doubt you would argue there are no social consequences if young people are persuaded to drop out of high school.  But even if I concede that the social effects of persuading people not to vote are incomparably worse than anything else imaginable, that would be relevant to whether advocating non-voting is immoral, but not to whether it is vote suppression.  The latter question turns on the meaning of the phrase vote suppression.  The insomniac few who are reading can decide for themselves what they think “suppression” means in English and whether reasoned persuasion is a form of suppression.

 

4.      Of course I agree that dirty politics is morally objectionable.  The use of the word “dirty” in that phrase has the sole function of modifying “politics” to refer to politics that are morally objectionable.  Again, I neither accuse nor defend LTR on the charge of dirty politics, but I deny that the mere fact that they have urged strategic non-voting is dirty.

 

Finally, I do not agree that the main difference between us is over the social function of voting.  Like you, I recognize the tension between the two conceptions, both of which have some plausibility.  On vote suppression, I think our difference is over the meaning of the term and, perhaps, over whether the meaning of such a term is highly elastic or, to the contrary, to stretch such an accusatory term is inflammatory and therefore should be avoided.  On the question of whether urging non-voting is immoral, our difference probably turns on your undefined use of the term “skewing” of an election.  I cannot see any sense in which an election is skewed if some individuals are non-deceptively persuaded to strategically decline to vote.  That is not to say I think it is good for people to be so persuaded, but I resist the temptation to assume that an election is skewed because some people choose to exercise their franchise differently than I do.

 

 

 

At some point Dan and I should probably take this debate off list.  I have a few responses, in case anyone else is still awake, in the order in which Dan mentions the topics.

1. I think you are wrong as an empirical matter that there's not a lot of payment going on in those places that allow it when there are no federal candidates on the ballot.  The system is usually not as crass as cash payments for turnout.  Instead, it is coupons, handed out in selected neighborhoods (selected to maximize turnout of the group you want) that allow some free item (donuts, car wash etc.) with a voting stub.  In my article, I am ambivalent about such payments.  On the one hand, I think there is a good political equality argument for getting people to vote (as I set out in an earlier email, this depends upon a normative view of voting as the act of allocating power among political equals, not a normative view of voting as a kind of "test" to pick the best candidate).  On the other hand, I worry about inalienability issues: will payments for turnout change the nature of what voting is "for," making people even more self-interested in making their decisions?  But the bottom line is that there is a respectable normative argument for payments to increase turnout.  I cannot imagine a similar normative argument for payments to suppress turnout.  So I think the two cases are different, and we can't just label the issue as "bribery" and say the actions are equivalent.

2. You write: "There are many things people have a legal right to say (or publish) that I believe are immoral for them to say.  Advocacy of racism, religious bigotry, and communism are examples.  Is advocacy of non-voting in that category?  I think clearly not."  I learned in law school (perhaps from you?) that use of the word "clearly" often masks the inability or unwillingness to articulate precisely what one is arguing.  I'd say that advocating non-voting in an attempt to skew an election outcome is indeed in the same category as the other things you mention.  We simply have made different moral judgments.  At the very least, the point is not "clear" to me.

3. Turning now to the direct question of urging people not to vote--and in particular to urging a selected group of people not to vote in an attempt to skew the outcome of the election:  your analogy to Hitchens, Dawkins and other atheists suffers from what I consider to be a major flaw.  If Hitchens tries to convince someone not to believe in her religion anymore, that attempt certainly has a personal consequence but it does not have social consequences.  In contrast, if Latinos for Reform convince Latinos to abstain from voting in large enough numbers to sway an election, that has social consequences.  Again, beginning with my starting point that voting is about the allocation of political power among political equals, the attempt to try to skew that outcome will affect everyone in society because it alters the allocation of political power.  That in my view is immoral---again, even though such speech is certainly legal and protected by the First Amendment.  So while you can call your position "unanswerable," I have provided an answer, though it is one you probably do not agree with.   I feel quite comfortable condemning such activity as a form of vote suppression.  I should add that I also think it is immoral for Democrats to recruit and financially support (false or genuine)  Tea Party candidates in an effort to siphon off Republican votes.  This is the allegation---I believe it remains contested---of the tea party candidate on the Nevada Senate ballot.  (Same with Republican efforts to support Nader in the presidential elections.)  Again---not illegal, but objectionable, and for similar reasons.

4. At the end of your post you draw a distinction between "vote suppression" and "dirty politics."  Assume I concede vote suppression is the wrong label.  Do you agree that such dirty politics is morally objectionable?

In the end, I think a big part of our disagreement stems from fundamentally different starting points about the purpose of our elections and of the franchise.



On 10/20/2010 1:43 PM, Lowenstein, Daniel wrote:

            I apologize for this lengthy message.  Rick made at least three major points and I’d like to respond to each of them.  Fortunately, the delete key is handy.

 

Bribery of voters to vote for particular candidates or parties was by far the major problem of election integrity in both England and the United States until the introduction of the secret ballot.  The secret ballot did not entirely eliminate the problem in the U.S. (see, for example, the first volume of Caro’s biography of Lyndon Johnson), but it greatly mitigated it.  Paying voters either to vote or not vote, though not as efficient as paying them to vote in a particular way, surely can be used for the same purpose by selecting the voters targeted for payment.  Paying individuals not to vote is just as enforceable as paying them to vote in a particular manner in the absence of a secret ballot.  Paying people on the condition that they vote carries the risk that they will vote the wrong way, but still could be effective. 

 

            For these reasons I prefer the federal rule prohibiting payments either for voting or for not voting over the California law which criminalizes the latter but not the former.  However, in the absence of reason to believe that there is a great deal of payment for voting going on (there has been some, as Rick is aware, but so far as I know not very much), it is not high on my list of problems that need to be remedied.

 

            The law in California, to the extent it reflects any judgment at all on these matters, embodies the view either that paying someone not to vote is worse than paying to vote, or that there is more of a need for a deterrent against paying for not voting, or some combination.  Even if we assume that the law reflects a judgment that paying people to vote is perfectly proper—and I doubt whether that judgment would persist if the practice of paying people to vote became both widespread and visible—that still has no bearing on the propriety of urging people not to vote.  It is perfectly proper for people to pay for most things, but it is also perfectly proper for others to urge them not to do those things.  For example, it is perfectly proper to pay for alcoholic beverages but it is also proper for others to urge abstention from alcohol.

 

There are many things people have a legal right to say (or publish) that I believe are immoral for them to say.  Advocacy of racism, religious bigotry, and communism are examples.  Is advocacy of non-voting in that category?  I think clearly not.

 

            I agree that there is a social norm in favor of voting and that it is a good thing for that norm to exist.  But as I said in my earlier message, it is either desirable or at least permissible—morally as well as legally, I will add—for people who have a different view to urge abandonment or modification of social norms, including those I happen to agree with.  (J.S. Mill, for one, famously regarded such speech as desirable.  As a generality, I’d tend to say permissible.)  There is a social norm in this country, which I agree with, in favor of education and in favor of encouraging young people to at least finish high school and often to go on to complete college.  But it is not immoral to argue the contrary—perhaps, for example, on the ground that what is taught in schools and colleges is not worth the time and expense of attending them. 

 

            There is no easy formula for distinguishing between advocacy that is immoral and that which, though contrary to social norms I (and presumably you) agree with, is perfectly proper.  One factor is the hatefulness of the idea being advocated and the immediately and severely pernicious consequences likely to follow.  Another is the degree to which the advocacy is reasoned.

 

            As said above, I favor the social norm in favor of voting, but it seems to me quite out of the question to regard urging non-voting as hateful.  If many people fail to vote there may be negative consequences, but that is hardly certain and in any event the consequences are not nearly immediate or severe enough to make the advocacy immoral.  Compared, for example, to the consequences of widespread dropping out of high school, I’d say the consequences of non-voting are trivial at most. 

 

Furthermore, it is not at all clear that reasoned urging of strategic non-voting even contravenes the general social norm, at least as I would apply it.  It is a rational strategy for a group that, if it votes, must vote for a particular party, to withhold or threaten to withhold its votes when it believes the party has been insufficiently responsive to its concerns.  That was precisely the strategy underlying the Liberal and Conservative Parties in New York when those parties operated with integrity.  (Ironically, Rick and others on this list were dismayed when the Supreme Court failed to find such a strategy not only proper but constitutionally protected.)  The same logic underlies a view that liberal Latinos who, as a practical matter, must vote Democratic if they vote at all, should abstain because the Democratic Party has been insufficiently responsive on immigration.  Needless to say, I am not endorsing the normative or empirical premises that underlie that view nor even the strategy itself.  I am simply saying that it is a rational strategy and that anyone who believes in it is morally justified in saying so.

 

The detailed discussion of the NOTA option is perfectly appropriate for this listserv, but the strategy is the same, whether voters are urged to vote NOTA, to vote for a third party, or not to vote at all.  To believe fusion candidacies—whose function is to facilitate the use of this strategy—are or should be constitutionally protected and to believe that urging strategic non-voting is a dirty tactic is to split hairs so fine that angels accustomed to dancing on the head of a pin would fall off.

 

            Finally, Rick repeats the claim that urging people not to vote is voter suppression.  As Guy Charles correctly said today, that is a bare assertion.  Rick provides no reasoning in support of it.  I said that suppression—and certainly this is true when the word is used in the phrase “voter suppression”—means preventing people from doing something that they want to do, not persuading them.  That seems to me unanswerably to be a correct statement of how the term is used among speakers of English.  Since the term voter suppression is, to say the least, a pejorative term, to apply the term to efforts at persuasion seems to me not only incorrect but inflammatory.

 

            Consider another heinous activity, religious suppression.  I believe that term refers to coercive interference with the ability of other people to practice their religion.  Now consider aggressively atheistic books such as those by Richard Dawkins, Christopher Hitchens, and Sam Harris.  Those books are intended to and probably will, to some degree, persuade some people to abandon their Christian beliefs and persuade others not to become Christians.  The books contain arguments that many Christians regard as tendentious, unfair, and perhaps deceptive.  But however that may be, it would be an abuse of language, in my opinion, to accuse Dawkins, Hitchens, and Harris of religious suppression.

 

            I do not agree with Rick’s compromise with Guy (to which Guy may or may not assent) that it is voter suppression if in fact Latinos for Reform is a small group of Republicans.  Even though the majority of Latinos in Nevada are undoubtedly Democrats, Republicans have the same right to try to persuade them as anyone else.  Depending on the details, the ad prepared by the organization may or may not be deceptive.  As I said last night, I do not have the information necessary for an opinion on that.  But lots of campaign ads are deceptive, to varying degrees.  That’s politics, maybe dirty politics, but not vote suppression.

 

 

 

Dan,

In California, in elections without a federal candidate on the ballot, it is legal to pay someone to turn out to vote.  I wrote about that extensively in my "Vote Buying" piece.  Would you consider that a "bribe" as well?  I don't think it is, which suggests to me that the evil that the law barring payments to induce people NOT to vote is different from a concern about bribery.   It could be about social disapproval of the practice of discouraging voting, or it could be an expression of concern about how such payments might skew results away from the interests of the poor (who, because of the declining marginal utility of money) are more likely to accept payment in exchange for not voting.

Once we eliminate the bribery argument, I think urging people not to vote and paying people not to vote are closer in practice than you do  (or at the very least, my analogy is no longer "utterly" without merit).  My main contention is that aiming messages not to vote at a particular population in an effort to skew the results of an election is morally (not legally) objectionable (or in Mark's words, pernicious).  The Latinos for Reform ad is an effort to suppress Latino votes.  Why not call that a vote suppression effort?  Again, that's not a legal claim (I don't think anyone from the group could be prosecuted for violating the VRA or any other statute), but a moral condemnation.

Rick


On 10/19/2010 10:24 PM, Lowenstein, Daniel wrote:

          The equation of urging people not to vote with paying them not to vote seems to me utterly without merit.  Paying someone not to vote is a bribe while urging that person not to vote is speech.  If I offer to pay someone to vote for Jerry Brown (or Meg Whitman), that is a bribe.  If I urge someone to vote for Brown (or Whitman), that is protected political speech.

           I also do not see how urging people not to vote can be regarded as vote suppression.  My vote is suppressed if, one way or another, I am prevented from voting when I would like to do so.  Rick may see merit in the idea of compulsory voting, but voting is not compulsory in America and each eligible person has a free choice whether or not to vote.  When one person is free to choose, another person is free to persuade.

           I have no knowledge on which to assess whether the advertisement of "Latinos for Reform" is dishonest or objectionable in other ways.  Any time persuasion is permissible it can be done in an abusive manner.  Furthermore, I understand that many people think that it is better for people to vote and therefore it is misguided to urge others not to vote.  But the whole point of freedom of speech is that it is a good thing--or at least permissible--for some people to set forth opinions that other people find objectionable.  The assertion that simply urging people not to vote is in itself akin to bribery or suppression seems to me remarkable and contrary to consensual American principles.

             Best,

             Daniel H. Lowenstein

             Director, Center for the Liberal Arts and Free Institutions (CLAFI)

             UCLA Law School

             405 Hilgard

             Los Angeles, California 90095-1476

             310-825-5148

________________________________

From: election-law-bounces@mailman.lls.edu [election-law-bounces@mailman.lls.edu] On Behalf Of Rick Hasen [rick.hasen@lls.edu]

Sent: Tuesday, October 19, 2010 7:51 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<http://news.firedoglake.com/2010/10/19/latinos-for-reform-run-by-bush-pioneers-and-appointees/>.” 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> [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<http://www.talkingpointsmemo.com/archives/2010/10/just_coming_right_out_saying_it.php#more?ref=fpblg> of an ad<http://www.politico.com/blogs/bensmith/1010/AntiReid_group_to_Hispanic_voters_Dont_Vote.html?showall> from "Latinos for Reform." Here's<http://www.npr.org/templates/archives/archive.php?thingId=127309149> an NPR story on the group from 2008. Here<http://www.bradenton.com/2010/10/18/2663454_new-ad-campa

ign-asks-latinos-not.html>'s the group's press release about the new ad. The most recent filing<http://forms.irs.gov/politicalOrgsSearch/search/Print.action?formId=34610&formType=E72> of this 527 organization is not illuminating. Here<http://www.campaignmoney.com/political/527/latinos-for-reform.asp>'s some 2008 financial information.

Posted by Rick Hasen at 09:01 PM<http://electionlawblog.org/archives/017436.html>

_______________________________________________

election-law mailing list

election-law@mailman.lls.edu<mailto:election-law@mailman.lls.edu>

http://mailman.lls.edu/mailman/listinfo/election-law

--

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<mailto:rick.hasen@lls.edu>

http://www.lls.edu/academics/faculty/hasen.html

http://electionlawblog.org