Rick:

I'm not sure about the reasoning below.  In particular "The Latinos for Reform ad is an effort to suppress Latino votes."  That statement seems to me to be more of a conclusion than an argument.  It is not clear to me why the ad must necessarily be a vote suppression effort.   It may be an effort to suppress Latino turnout or it may be an effort at legitimate electoral collective action.  The conclusion depends upon the facts; I see no reason why (in the absent of more facts) the ad must necessarily be an effort at voter suppression. Suppose that African American leaders who believe that the Obama administration and Democratic Party have been insufficiently unresponsive to black interest, in response to President Obama's campaign to boost black turnout, urge black voters to stay home in order to convince elected officials to take their concerns more seriously. It seems to me odd to say that type of electoral collective action is voter suppression.  Moreover, it seems wrong to morally equate that behavior (the campaign by black elected officials) with, for example, a campaign by individuals who are telling blacks to stay home in order to increase the probability that (e.g.,) Republicans would win.  The latter seem to be closer to what we mean when we talk about voter suppression.  The former seems much closer to morally legitimate political activity.  Put differently, it is either the case that the term "voter suppression" is a term of art or it is meaningless descriptive conclusion.  Guy

 

 
>>> Rick Hasen <rick.hasen@lls.edu> 10/20/2010 10:46 AM >>>
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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--
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

--
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