Subject: Re: [EL] BOOK: The Myth of Voter Fraud, by Lorraine C. Minnite
From: Justin Levitt
Date: 10/27/2010, 12:26 PM
To: Election Law
CC: "BZall@aol.com" <BZall@aol.com>

I'm not sure the attempt is to "define the problem away", rather than to make sure that when people are trying to solve the problem, they're focusing on solutions tailored to the practices that are actually causing damage, and weighing the costs of those solutions against their actual benefits. 

For example, I think you'll find fairly widespread agreement that the rate of supported misconduct involving "insider" schemes (including vote buying and submission of fraudulent ballots in bulk) is far larger than the rate of supported claims of fraud at the polls by individual voters, and that the rate of supported misconduct involving absentee ballots is larger yet.   But as Lori, and I, and others including Prof. Schultz have documented, these very different kinds of fraud are often lumped together by those who wish to support their own preferred solutions.  Most often, those "solutions"  involve calls for challenges to, or restrictions on, individual voters at the polls -- which can't possibly stop the more prevalent types of fraud that people are complaining about.

The Crawford litigation is a good example, actually.  The litigation was about a requirement that voters show certain types of photo ID at the polls.  That requirement stops only one very narrow type of fraud.  But several of the amicus briefs filed in the case tried to support the requirement by citing claims (some supported, some not) of fraud that photo ID couldn't possibly stop.   I actually looked through every single allegation submitted in every single amicus brief filed, parsing out those that involved types of fraud that the challenged law could possibly prevent -- which were a tiny fraction of the claims cited.  (The analysis of all of these claims is here.)  Indeed, "out of almost 400 million votes cast in general elections alone since 2000, the briefs [submitted to the Court in Crawford] cite one attempt at impersonation that was thwarted without a photo ID requirement, and nine unresolved cases where impersonation fraud at the polls was suspected but not proven."

To be fair, some of the allegations in Mr. Zall's brief were among the very few that might possibly have involved in-person voter fraud.  I stress "might possibly," because even Mr. Adkins' lone case isn't clear.  He does indeed believe that his vote was stolen by someone who voted in his place, in part because he was informed that someone had signed in on the line for his name in the pollbook.  And I don't mean to minimize the fact that he was not able to cast a valid vote in the election, which is indeed disturbing.  But though it's possible that his vote was "stolen," we don't actually know whether someone impersonated him.  As anyone who has worked as a pollworker will tell you, lamentably, people occasionally sign the wrong line of the pollbook when they go to vote -- as reporters have found when they've chased down stories about fraud in the past.  The good news is that after an election, there's always evidence -- the pollbook itself -- to check for this sort of mistake.  Unfortunately, when I was reviewing Mr. Adkins' allegations, I could find no public source indicating whether anyone had actually checked the pollbook or not.

Justin

-- 
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
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On 10/27/2010 10:35 AM, BZall@aol.com wrote:
As a lurker on this list, I know you are entitled to chat and write books about your own views as much as you like. Once in a while, however, you might want to check against confirmation bias. In particular, I note that this discussion, like previous discussions on this topic, has the problem of defining the issue away. Thus, as one of these articles does, citing Minnite, defining "voter fraud" as including ONLY fraud by "voters" will automatically make the potential pool smaller. One might reasonably assume that individual voters will have less incentive to commit fraud than “others who are involved in election administration and political campaigns." One might even assume that those involved in political campaigns have the highest incentive to engage in fraud. So if we call the more likely forms "election fraud" instead of "voter fraud," then it is likely that the definition, rather than the available information, made the difference. Similarly with "election official fraud."
 
In the same vein is failing to look beyond the surface of refutations of these "mythical" claims of fraud; in other words, applying the same level of skepticism to claims that fraud doesn't exist. For example, looking at just one case, Santillanes, the assumption is that the decision showed no in-person voter fraud. See, the Mitchell Law Review article at 520 ("Thus, the possibility of voter fraud was found to be without merit.297"). But looking in the record of the case shows that the problem was defined so narrowly as to skew that conclusion: "With respect to the City's narrower interest in preventing people from impersonating another voter at the polls in order to steal their vote, there is no admissible evidence in the record that such voter impersonation fraud has occurred with any frequency in past municipal elections.” 506 F.Supp.2d at 637 (emphasis added). Four specific limiting factors pique one's interest. Judge Armijo did note that the ordinance in that case was stimulated, at least in part, by reports of such fraud in the 2004 Presidential election, but said that the details of such reports had not been presented to her. Id. One reason for the lack of “evidence in the record” is that Judge Armijo did not permit such evidence to be presented to her. In Footnote 3 of the decision, Judge Armijo notes that she denied a motion to intervene by, inter alia, Dwight Adkins. 506 F.Supp.2d at 608 n. 3. In her unpublished memorandum opinion denying intervention, Judge Armijo found that the intervention motion was not filed timely. American Civil Liberties Union of New Mexico v. Santillanes, No. 1:05-cv-01136-MCA-WDS, Doc. 42, slip op., at 11 (D.N.M., July 12, 2006). Judge Armijo’s decision notes only that Dwight Adkins, one of the individuals who moved to intervene, “claims he was deprived of his vote in 2004.” Id., at 7. In his Motion to Intervene, however, Mr. Adkins stated that “[i]n the 2004 election, his vote was stolen by someone who voted in his place. Mr. Adkins was ‘allowed’ to cast a provisional ballot, but he was informed that it was not counted.” Santillanes, No. 1:05-cv-01136-MCA-WDS, Doc. 33, at 3 (D.N.M. June 13, 2006). Even experienced appellate lawyers have trouble following these twists in evidentiary rulings, but they can be important when making sweeping claims. It's essentially the same thing as defining the problem away. 
 
Here's a brief from Crawford taking on this question, from the point of view of someone who didn't mean to look at it in the first place, but found, with essentially no effort, that both in-person and registration voter fraud exists in significant amounts: http://www.americanunity.org/docs/crawford_brief.pdf The material above was taken from that brief.
 
On the other hand, we have definitely made progress since Crawford; we have moved from saying there is NO voter fraud, to saying it exists, but is very small. But if you are a U.S. citizen who is not able to vote because someone has already cast your ballot, as happened to Dwight Adkins in New Mexico, you might think that very small is not insignificant. Like, perhaps, discrimination in voting because of an inability to produce documentation?
 
Also, it is fascinating to watch people who lionize Justice Stevens for his position in Citizens United and other cases struggle with his common-sense finding that voter fraud does exist, is shown throughout American history, and justifies state actions to avoid it. It may be that Stevens actually looked through the cases to find many instances of non-citizen and other voting fraud, prosecuted to a verdict. It's what he did. Tough to argue that fraud doesn't exist when all those obstacles to prosecuting it are overcome.
 
Barnaby Zall
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bzall@aol.com


 
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