Subject: Re: [EL] photo IDs and detection of voter fraud
From: "Lorraine C. Minnite" <lminnite@gmail.com>
Date: 12/4/2010, 2:04 PM
To: "Smith, Brad" <BSmith@law.capital.edu>
CC: "election-law@mailman.lls.edu" <election-law@mailman.lls.edu>

I think what you miss, Brad, is the cumulative and collective effect of what you so nicely describe - the way in which the myriad rules that we have devised to administer voting entangle people and effectively deprive them of their vote.  Survey researchers have found that thousands, if not millions of voters are deprived of their votes due to administrative problems, sometimes caused by voters themselves and sometimes by election administrators.  Of course, rules that cause people to deprive themselves of their fundamental right to vote should be examined and revised to make it harder for people to do that.

Photo ID is just one more example.  One wonders from the evidence that if: a) photo ID laws don't prevent fraud; b) photo ID rules don't deter fraud; and c) photo ID laws play no role in ensuring trust in the electoral system; why do we have photo ID rules.  That the majority of the public supports photo ID laws (and I've argued that support is improperly measured in the first place) is irrelevant to a rule that likely burdens a civil right.  I know that courts accept that legislatures can enact faulty laws (laws that don't do what legislative proponents say they will do), but citizens should not.

The issue isn't collapsing the idea that every burden on voting deprives one of the franchise - the issue is the unnecessary complexity and variation in the rules that together deprive some people some of the time of the vote.  I'd like a system that could be administered by fourth graders (crayon and paper would do), maybe with some teacher supervision.  Given the existing mess, I think it is fair to question the value of yet another rule that doesn't do what its proponents say it's supposed to do, and to weigh the rule in light of the damage (potential and real) it can cause.  That seems like a fair debate.  No one is saying we should have no rules governing access to the ballot.  But many of the rules we do have are anti-democratic in that they combine to thwart rather than promote the broadest participation.  And we have historical and other evidence showing that they were adopted to do just that.

Finally, it's fine to move the discussion of the degree of burden off this list.  But I do think it is an important question, even a central question regarding the fraud/photo ID debate for both social science which is concerned with or should be concerned with conceptual clarity and empirical measurement, and for legal analysis where courts weigh costs and benefits in tangible ways (I think the legal lingo is 'balancing tests').

Lori Minnite

On 12/4/10 4:05 PM, Smith, Brad wrote:
Well, again, I don't want to get into discussing the degree of burden.  My original post to David was simply that the public supports photo ID, and seems to do so in  large part because it just doesn't see it as a burden.  And of course, as you point out, for most it is not a burden- they would have ID anyway.  So the point that needs to be made is that burden on a (rather small) minority of people is still substantial enough tha the laws should not be enacted, at least in light of negligible benefit.
 
As to your specific example, I think you jump a step.  You say that a small percentage want to vote but stay home because they learn close to the election you need an ID and they can't get one in time.  Should we really consider them people who can't vote because of the ID law?  I don't think that most people do.  Rather, they are people who chose not to vote because they decided the burden wasn't worth it, or they just didn't plan properly.  Now, I'm not saying that that is not a real burden.  But it's not quite the same as saying that it is such a burden that they can't vote.   Suppose you have to be registered 30 days in advance, and on day 29 you decide you want to vote and discover you can't get registered?  Has this person been "denied the opportunity to cast a ballot?"  Does the Constitution make pre-election voter registration unconstitutional?  Suppose a person moves from a state where the polls are open until 8:00 p.m to one where the polls close at 6:00 p.m.  He just assumes the polls will be open later.  On election day, at 5:45 he realizes that the polls close in 15 minutes, but it is too late to get to the polls without driving recklessly, so he decides not to vote.  Was this person "denied the opportunity to cast a ballot?"  Does the Constitution require that polls be open later?  How is this different from a person who moves from a no ID state to an ID state, and realizes too late that he no longer has time to get an ID?  In other words, my answer to your question is: how hard is it to get ID on a timely basis, and to what extent is it reasonable for people to know that?  Then we need to measure burden with the government interest. 
 
In short, we need to stop collapsing the idea that every burden on voting deprives one of the franchise. Every burden will cause some people not to vote.  But I don't think that really counts as disenfranchisement.  At what point does it really become an unconstitutional burden. I don't know.    
 
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317
http://www.law.capital.edu/Faculty/Bios/bsmith.asp

From: Lorraine C. Minnite [mailto:lminnite@gmail.com]
Sent: Sat 12/4/2010 2:51 PM
To: Smith, Brad
Cc: election-law@mailman.lls.edu
Subject: Re: [EL] photo IDs and detection of voter fraud

Brad,

Let's say you have some small fraction of eligible, properly registered voters who want to vote, and maybe they go to the polls or maybe they stay home because they hear that you need a photo ID to vote and it's too close to the election to obtain the ID; so the photo ID requirement is the sole reason why say 1-2 percent of otherwise eligible voters who wanted to vote were denied the opportunity to cast a ballot that would have been counted under a less restrictive ID requirement, so counted under a signature match regime and not even cast under document ID regime, or cast provisionally under the latter but not counted because the voter doesn't obtain the ID within the allowable window after the election or doesn't otherwise qualify for a waiver: would you conclude from this hypothetical scenario that the photo ID requirement is a "burden?"  The denominator for the 1-2 percent denied the vote is: those who actually turned out + those who wanted to turnout but couldn't vote because they lacked a photo ID (1-2 percent of the total universe of people casting ballots had the ID requirement not kept some of them from voting).

Lori

On 12/4/10 1:36 PM, Smith, Brad wrote:
I don't think that's an alternative hypothesis, Lori, I think it is just developing the issue more fully.  It sounds like we're in agreement - the public overwhelmingly favors photo ID because it doesn't see it as a big burden, and oppenents of photo ID need to better the point that it is a burden.
 
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317
http://www.law.capital.edu/Faculty/Bios/bsmith.asp

From: election-law-bounces@mailman.lls.edu on behalf of Lorraine C. Minnite
Sent: Sat 12/4/2010 11:38 AM
To: election-law@mailman.lls.edu
Subject: Re: [EL] photo IDs and detection of voter fraud

I think we need to ask questions about the claim that "the public overwhelming favors photo ID largely because, with or without empirical evidence, they see it as an easy attack point on the system, and rightly or wrongly do not see opponents of photo ID as having the made their case."

Alternative hypothesis - the public overwhelmingly supports photo ID because the public overwhelmingly possesses photo ID.  I have not yet seen a poll that properly conditions the question about support for photo ID to control for the fact that in some states over 90 percent of the voting age population has photo ID.  The issue here never should be simple support for photo ID.  The debate should be about disproportionate burdens that weigh most heavily on those citizens with the least material and educational resources.  Do we want those people on the margins of society voting or not?  If we do, then public policy should be designed accordingly.

Lori Minnite

On 12/4/10 11:26 AM, Smith, Brad wrote:
David,
 
I agree with much of what you write but I disagree with you how you characterize the logical result of the pro-ID argument.  I take them to be arguing that claims that there is very little voter impersonation understate the problem, because there is no mechanism to catch it. Thus, anecdotal evidence where people are caught or schemes have been tried should be logically magnified, they argue, to account for this in considering the extent of the problem. I person caught may represent literally hundreds of people not caught.  I do not take them to be saying that if voter ID were enacted, it would be caught (i.e. there would be prosecutions, etc.).  Rather, I take them to be saying that if voter ID were enacted, it would be deterred. 
 
Thus I agree when you write:

"As I read the debate on voter fraud, those who argue in favor of photo IDs contend that currently there more fraud out there in the election process than is currently detected by the existing election rules and processes. John Fund and many others, including the Minnesota Majority, definitely belief that. If we can take their claims at claims at face value, they are making an EMPIRICAL claim that fraud exists but that it is hard to detect. If that is true, then there must be a way to test or verify their claims. Phrased otherwise, can we reformulate their assertions into testable hypotheses?"

But I disagree when you follow with:

"One way to test their claim is instituting photo ID. Photo ID should reveal attempted fraud and therefore studies should be able to demonstrate that the implementation of these IDs yields more reports of attempted fraud."

Because attempted voter impersonation would be rather foolish in a photo ID regime, it would be expected that in such a regime there will be very few reports of attempted fraud.  Indeed, if they had any effect, it would probably be fewer reported attempts of fraud.

You are correct that this creates a bit of an "is to,"/"is not" argument.  But from a standpoint of enacting public policy, the public overwhelming favors photo ID largely because, with or without empirical evidence, they see it as an easy attack point on the system, and rightly or wrongly do not see opponents of photo ID as having the made their case.  Thus my thought would be that if you want to change public policy in the area, you need to focus more on the case that the laws are burdensome than that they are not necessary.

My two cents.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317

From: election-law-bounces@mailman.lls.edu on behalf of David A. Schultz
Sent: Sat 12/4/2010 9:48 AM
To: LarryLevine@earthlink.net; election-law@mailman.lls.edu; Mark.Scarberry@pepperdine.edu
Subject: Re: [EL] photo IDs and detection of voter fraud

Maybe I am just unclear but what seems to have eluded others in my comments is a simple proposition?debates over voter fraud and photo ID are essentially empirical propositions and not matters of conjecture. Let me explain my bias and the issue here.

Public policy should be fact-based. It should be forged not on hopes and beliefs but upon good social science research and empirical facts to guide decisions. Too often we act on belief, hope, conjecture, rumor, and prejudice. None of these should be substitutes for basing policy based on what we know or show.

As I read the debate on voter fraud, those who argue in favor of photo IDs contend that currently there more fraud out there in the election process than is currently detected by the existing election rules and processes. John Fund and many others, including the Minnesota Majority, definitely belief that. If we can take their claims at claims at face value, they are making an EMPIRICAL claim that fraud exists but that it is hard to detect. If that is true, then there must be a way to test or verify their claims. Phrased otherwise, can we reformulate their assertions into testable hypotheses?

One way to test their claim is instituting photo ID. Photo ID should reveal attempted fraud and therefore studies should be able to demonstrate that the implementation of these IDs yields more reports of attempted fraud. Yet no one has produced a study to show this.

This then leads to a backup claim: Implementation of voter ID deters attempted fraud. Ok, good claim but show me the evidence. If you are going to claim it deters attempted fraud then there has to be some baseline pre-existing fraud which you can document and that the new levels of (attempted) fraud show a decrease from that baseline. Thus, this is again an EMPIRICAL claim. Another way to argue this: If photo ID deters attempted fraud then show me the evidence that supports that. Show me how attempted fraud or fraud have decreased as a result of the implementation of the ID. Alas, no evidence is offered because the argument is that without ID we cannot detect and show fraud. The argument here is circular at best.

I would just like supporters of photo ID to be honest. They are advocating for a public policy when they have no real empirical evidence to show that fraud is a significant problem. Be honest like Mark and simply state that he likes ID because it appeases voters who believe (falsely) that fraud is a problem. Just admit that there is no real empirical evidence of serious fraud to support your policy option and we can move on.

Now I happen to believe, especially after working as a housing and economic planner and being a government administrator, and now one who teaches public policy, that laws and policy should be based on facts and not conjecture. I admit some fraud exists in the USA, but the levels are minuscule. The issue is to ask a cost-benefit question. It is impossible to have a 100% fraudless and perfect election system. Errors will exist so long as we are humans. We need to ask what are the additional measures that can be taken to reduce errors and fraud, how likely those measures are to work, and what are the costs associated with those measures. It only makes sense to ask these questions if we have real EMPIRICAL data about fraud that we can assess.




David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
School of Business
570 Asbury Street
Suite 308
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3098 (fax)
http://davidschultz.v2efoliomn.mnscu.edu/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/

>>> "Scarberry, Mark" 12/04/10 1:16 AM >>>
I suppose, since Larry has joined David in disagreeing with me, I should respond simply to say that David's point seems to me quite unpersuasive. Proponents of photo ID do not argue that it is the lack of a current photo ID requirement that prevents us from documenting the full extent of current voter fraud. I haven?t heard anyone argue that photo IDs are needed to document how much voter fraud, if any,  is now occurring. Of course, to the extent people stupidly try to vote with obviously false photo IDs, such attempts at voting fraud would be likely to be detected if there were a photo ID requirement. But such stupid voter fraud attempts are not the kind of voter fraud that proponents worry about.
 
I've already stated that I agree that the evidence does not seem to suggest widespread current voter fraud. That does not necessarily mean it is unwise to take steps to try to ensure that voter fraud does not become more prevalent in the future or to try to deter whatever voter fraud may now be occurring beneath the radar or to allow voters to have more confidence in the integrity of the voting system. If I recall correctly, surveys indicate that many voters think it is strange that photo ID is generally not required and that many voters would have more confidence in the system if it were required. Perhaps someone on the list will have the survey information at his or her fingertips.

 

Best wishes,

Mark

 

Mark S. Scarberry

Pepperdine Univ. School of Law


From: Larry Levine [mailto:LarryLevine@earthlink.net]
Sent: Fri 12/3/2010 6:57 PM
To: David A. Schultz; election-law@mailman.lls.edu; Scarberry, Mark
Subject: Re: [EL] photo IDs and detection of voter fraud

I'm not sure the matter of voter confidence is relevant. I've never seen anything indicating voters lack confidence in the process of voting. I have seen information that indicates some voters have questions about vote counting, particularly when there is no paper ballot or backup. So, voter confidence as a reason for photo ID seems to be a red herring.
Neither have I seen any evidence of wide spread voter fraud, let alone fraud that would be caught or deterred by photo IDs, in spite of the frequency with which the issue is raised on this list.
It seems to me that the call for photo IDs in the political realm always comes from the same political party. Could the entire subject be a red herring?
Larry 
----- Original Message -----
Sent: Friday, December 03, 2010 2:32 PM
Subject: RE: [EL] photo IDs and detection of voter fraud

Mark:
 
You are still making my point.  They will argue that current studies fail to document the full extent of fraud because we do not have photo IDs.  At the same time they argue that the use of IDS deters fraud.    You cannot argue this points at the same time.   The reason is that you have no created an assertionwhere it is impossible to falsify either claim empirically.
 
I am not interested in what someone can assert but in what on can prove.


David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
School of Business
570 Asbury Street
Suite 308
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3098 (fax)
http://davidschultz.v2efoliomn.mnscu.edu/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/

>>> "Scarberry, Mark" 12/03/10 4:06 PM >>>

The proponents of photo ID are not arguing that it is needed to detect fraud (so that we can know how much fraud has been occurring). Rather, they are arguing that it is needed to prevent fraud. Most of the prevention would result from deterrence due to the fear of detection, not from actual detection of voter fraud. As Larry Levine?s post suggests, detection would result only in cases of very inept attempted fraud. As he put it, if someone shows up with photo ID that has someone else?s picture on it, that ?would be evidence of stupidity more than fraud.?

As best I can tell, the evidence is strong that currently there are few instances of actual voter fraud of the kind that would be deterred or detected by photo ID laws. Perhaps the stronger argument for such laws is not that they will prevent voter fraud but rather that they will enhance voter confidence in the system. It might also be argued that photo ID laws will give some protection against future corruption of the voting system by future schemes to use voter fraud to rig elections. Isn?t it the case that such schemes have been used in the past? Isn?t it reasonable to be concerned that they might be used again? Of course, to the extent fake photo IDs can be obtained easily, the protection given by a photo ID scheme is reduced. But somehow it seems less likely that people will be willing to obtain fake photo ID for purposes of voting than that they could be induced to show up at multiple precincts to vote using different names.

Mark Scarberry

Pepperdine Univ. School of Law

From: Larry Levine [mailto:LarryLevine@earthlink.net]
Sent: Friday, December 03, 2010 12:39 PM
To: David A. Schultz; election-law@mailman.lls.edu; Scarberry, Mark
Subject: Re: [EL] photo IDs and detection of voter fraud

That's the kind of evidence that will be suspect on its face.

Larry

----- Original Message -----

Sent: Friday, December 03, 2010 12:32 PM

Subject: Re: [EL] photo IDs and detection of voter fraud

You make my point exactly.

One cannot simultaneously contend that photo IDs are needed to detect fraud and then also argue that the implementation and use of them reveals no increased fraud because it deters attempted fraud.

However, I am still looking for evidence of increased detection of fraud as a result of IDs.

David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
School of Business
570 Asbury Street
Suite 308
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3098 (fax)
http://davidschultz.v2efoliomn.mnscu.edu/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/


>>> "Scarberry, Mark" 12/03/10 2:25 PM >>>

The tricky point here is that voter photo ID requirements might be supported because of uncertainty about the amount of voter fraud, but, to the extent implementation of voter photo ID requirements deter *attempts* to commit voter fraud (or are unsuccessful in detecting voter fraud), little useful data will be generated. I don?t suppose any variation in turnout could be determined to be caused by deterrence of voter fraud, because lots of other factors are at work.

Mark Scarberry

Pepperdine Univ. School of Law

From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of David A. Schultz
Sent: Friday, December 03, 2010 11:46 AM
To: election-law@mailman.lls.edu
Subject: [EL] photo IDs and detection of voter fraud

One of the arguments among advocates of photo voter IDs is that currently we do not know the full scope of potential voter fraud without them. This is because the fraud is undetected. There is thus an empirical argument here. Specifically, the implementation of photo ID for voting should reveal or detect fraud that was otherwise previously hidden.

Are there any studies or analysis on the use of photo voter IDs that address this issue? Have any states that have instituted photo IDs produced numbers or stats on changes in reported or detected fraud? I would be interested to see or know about these studies for a paper I am constructing.

Thank you.

David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
School of Business
570 Asbury Street
Suite 308
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3098 (fax)
http://davidschultz.v2efoliomn.mnscu.edu/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/

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