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 In her unpublished memorandum opinion denying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
Of Counsel
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Weinberg, Jacobs & Tolani, LLP
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bzall@aol.com
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