Vote fraud and voter intimidation (apropos Justice Stevens' refusal to st...

Tue Nov 2 11:52:49 PST 2004

I note for what it is worth that one of the problems at Abu Ghraib was
the rounding up of many "suspected terrorists," most of whom proved to
be of no value to the Army, coupled with a reluctance on the part of
command leaders to release almost any of the detainees.  Better,
apparently, to have 100 false positives that to release one false
negative who might turn out to be the equivalent of Willy Horton.
Aren't we always making such tradeoffs, and isn't the relative concern
about the balance between identifying people who are in fact ineligible
to vote and the deterrence of altogether eligible people one of them?

sandy 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Tushnet
Sent: Tuesday, November 02, 2004 1:37 PM
To: LyndaGDodd at aol.com
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: Vote fraud and voter intimidation (apropos Justice Stevens'
refusal to st...

On the balalnce between deterring vote fraud and voter intimidation:
Here too I would think that the analytic structure is pretty
straight-forward, and that it's the facts of each case that may make
things complicated.  At the first (and perhaps the only) step, one would
ask, I would think, whether the actions challenged as voter intimidation
were likely (more probably than not) to identify more instances of
voting by ineligible voters than instances of deterrence of voting by
eligible voters.  If so, no impermissible intimidation; if not,
impermissible intimidation.

There might be a second stage:  In the nature of things, it's likely to
be easier to identify instances of voting by ineligible voters than of
non-voting by eligible ones (because the ineligible voters have to show
up to cast votes -- or at least, someone has to cast votes in their
names, whereas the eligible ones who are deterred might not even show up
or, if they show up and leave because the lines are too long, might be
hard to see).  That might justify a rule requiring a stronger showing of
possible vote fraud before allowing actions that contribute to voter
intimidation.  Note that this isn't a normative claim that the right to
vote is more important than the interests protected by rules against
vote fraud, but a rule predicated on an empiricla judgment about which
type of problem is easier or harder to detect.
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I haven't heard of anyone cynically using claims of "voter intimidation"
in order to permit or excuse lax enforcement of voting eligbility
requirements. 

Judge Dlott's analysis was based on the premise that the effective
enforcement of eligibility requirements could credibly and *efficiently*
be performed by the trained poll officials who have always, in practice,
been left 
responsible for this task.   

Many civil rights advocates in Ohio expressed concern about the GOP
challenger plans because they believed that they would result in longer
delays at the polls, which could deter legitimate voters standing in
line.  

For my part, I'm left to wonder if "voter fraud" is a charge that is now

expected to be presumed legitimate without any adequate empirical
support.   

Lynda Dodd, J.D., PhD
Assistant Professor of Political Science Miami University of Ohio
218 Harrison Hall
Oxford, OH 45056
(513) 529-2000
website: www.users.muohio.edu/doddlg

I wonder to what extent "voter intimidation" is a code word for
effective enforcement of  eligibility requirements. Is there some sense
that it is better that ten fraudulent ballots be counted than that one
valid vote go uncounted?  If so, notice that every ineligible vote
counted dilutes the vote of  lawful voters.  Or is the idea of a "lawful
voter" unacceptable and undemocratic--even if that voter does not exist,
is a phantom out of Gogol's Dead Souls?
Charles Fried

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<HTML> I
haven't heard of anyone cynically using claims of "voter intimidation"=
in order to permit or excuse lax enforcement of voting eligbility
requireme= nts.=20 Judge Dlott's analysis was based on the
premise that the effective enfor= cement of eligibility requirements
could credibly and *efficiently* be perfo= rmed by the trained poll
officials who have always, in practice, been left r= esponsible for this
task. &nbsp;&nbsp; Many civil rights advocates in Ohio
expressed concern about the GOP chal= lenger plans because they believed
that they would result in longer delays a= t the polls, which could
deter legitimate voters standing in line. &nbsp; For my part,
I'm left to wonder if "voter fraud" is a charge that is now= expected
to be presumed legitimate without any adequate empirical support.=20=
&nbsp;&nbsp; Lynda Dodd, J.D., PhD Assistant Professor of
Political Science Miami University of Ohio
 218 Harrison Hall
 Oxford, OH 45056
 (513) 529-2000
 website: www.users.muohio.edu/doddlg I wonder to what
extent "voter intimidation" is a code word for effectiv= e=20
 enforcement of &nbsp;eligibility requirements. Is there some sense
that=20= it is=20 better that ten fraudulent ballots be counted than
that one valid vote g= o=20 uncounted? &nbsp;If so, notice that
every ineligible vote counted dilute= s the=20 vote of &nbsp;lawful
voters. &nbsp;Or is the idea of a "lawful voter" un= acceptable=20
 and undemocratic--even if that voter does not exist, is a phantom
out of= =20 Gogol's Dead Souls?
 Charles Fried</HTML>

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