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.
Best,
Daniel
Lowenstein
Director
UCLA
Center for the Liberal Arts
and Free Institutions (CLAFI)
310-825-5148
lowenstein@law.ucla.edu
From: Rick Hasen [mailto:rick.hasen@lls.edu]
Sent: Wednesday, October 20, 2010 7:46 AM
To: Lowenstein, Daniel
Cc: Jeff Patch; 'Election Law'
Subject: Re: [EL] Latinos for Voter Suppression
of Other Latinos?
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>
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