Subject: Re: [EL] BOOK: The Myth of Voter Fraud, by Lorraine C. Minnite
From: "BZall@aol.com" <BZall@aol.com>
Date: 10/27/2010, 10:35 AM
To: "election-law@mailman.lls.edu" <election-law@mailman.lls.edu>

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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