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Sunday, November 27, 2016

Election Fraud Claims Miss Opportunity For Voter Registration Fraud

The weekend brings a new allegation from President-elect Donald Trump about voting fraud resulting in "millions" of illegal votes.

The allegation was swiftly denounced as, among other things, a "fringe conspiracy theory" in the very lead of this Politico article.

But the possibility and opportunity for fraud remains largely unexplored and uninvestigated, curious circumstances indeed. At a minimum, the overeager dismissal of voter fraud claims suggests those doing the dismissing, are aware of systemic mischief and uneager to do anything to force its disclosure and their obligation to do something about it.

Election-related fraud can take two forms. Both have the potential for major mischief.

The first involves the misreporting of valid votes anywhere in the election process between the time the voter interacts with a polling machine, and the final tabulation of vote results. 

The trend of replacing old mechanical-lever machines with electronic touch-screen or scanners has not eliminated the basic problem of trust nor the opportunity for hyper-partisan poll workers to misreport numbers or otherwise make mistakes. (Some poll workers pull a 16-hour day which ends with the reporting of machine tallies, surely a common sense element to introduce at least the potential for mistakes, never mind much worse.)

One potential solution is presented by a blockchain-reliant electronic voting system (which is subject to a patent now in allowance and pending grant) using an electronic interface to report votes onto a decentralized, consensus-based public ledger (called the blockchain) which also allows for paper reports and an audit trail. 

When you consider all the individuals involved at the ground level of any election, it requires suspension of disbelief to be asked to believe (or assume) that everyone gets the numbers right. On a wide scale, the possibility for error only grows. Whether it is really possible to distort the outcome of any election is a different story, since both sides tend to be equally overzealous and opportunistic and one might credibly think the error or fudging the results may be roughly equal on both sides. (Or not.) 

Certainly, organized, clandestine efforts to rig the results would require the  involvement of many people and the silence or complicity of yet another large set of people, and the continued silence of all of these people (which is unlikely). Effective result-rigging would require misreporting and the absence of an audit trail or other verification mechanism, to permit the misreport from eventually being discovered, but this is the problem with electronic machines which do not print out a paper record. 

Now, to the second form of election fraud. This can distort (or throw) an election outcome as a result of the dilution of the legal voter pool by illegal or otherwise ineligible voters. Now this may be what Trump -- and others -- have in mind, but are not effectively communicating. (Amazingly, Trump & Co. also botched their explanation of the I-didn't-pay-taxes-one-year controversy.) While many non-citizens dutifully and eagerly report their ineligibility to vote when they are asked to "come out and vote on Election Day," anecdotal reports persist about plenty of other non-citizens who are clueless and sign whatever they are told to sign. They are signing voter registration forms, and have no idea what they are doing, but they are registered. (This can impact small races where a handful of votes does represent the margin of victory. Think your local party county committee races or local school board district, that type of thing, more than larger races like Congressional races.)

The potential for abuse exists, because observers know that our voter registration system operates on the honor system: We trust people to be truthful when asked if they are citizens.

But in a time where the hysteria was about possible deportations of legal immigrants, must the reasonable observer be forced to ignore at least the real possibility that there were scared-of-deportation immigrant non-citizens who signed up to vote?

Should we have a level of educated discourse on this topic that requires unanimity that, no, never, it is impossible that this could have happened, so impossible in fact, that we should not even explore the question? 

Across the country, these ineligible registered voters do add up. It may not be a big amount, may not be statistically significant, may not have any bearing on any election, but isn't it funny that this is a topic just about everyone is eager to cover up with a bulldozer so it never sees the light of day?

Eric Dixon is a New York lawyer who has represented dozens of candidates including presidential candidates in ballot access matters. 

Monday, November 21, 2016

Why Entertainers Should Not Discuss Politics or Social Issues

The recent Hamilton controversy raises several issues that range far beyond the stated content of the post-show monologue directed at the Vice President Elect.

One of the issues is the wisdom of entertainers, in any field, opining on political or social matters of the day.

The classic entertainment rule was that public declarations on anything in politics or culture was not merely considered unwise; in fact, many talent agents, producers and other "gatekeepers" for performers made it clear (officially or unofficially, in written contracts or with the stern talking-to) that such comments were forbidden, off limits, verboten.

Back then (and still true in a large regard today), the reason was pretty clear: Such opinions rarely, if ever, helped the bottom line. It's pure good business, pure good show business.

Why is that the case? Wouldn't affinity with a star, agreement or sympathy with his or her positions, help drive ticket sales, record sales, licensing revenue and so on?

Yes, potentially -- but the opposite is true too. 

The best example is demonstrated by the relatively new trend towards identifying the sexual identities of comic book heroes. (Full disclosure: I am not a comic book fan, never was, so the field is rather alien to me; the advantage is that I can discuss this issue unemotionally.)

Prior to the last twenty years or so, comic books and their derivative cartoons, movies, etc., rarely delved into the personal lives of their characters. Even with characters whose superhero identity and storylines often involved their "mortal" alter ego and attempts to hide their "real" identity (think: Peter Parker and Spider-Man), the personal lives and intimate exploits were typically rarely or never explored in plot lines. (The more recent cinematic iterations of characters are a sharp departure from this classic treatment.)

I contend that part of the mystique and allure of superheroes, or many fictional characters, is the mystery of the unknown. Since the fans don't know much about a certain character, they can imagine those traits, those realities, and project their own values onto their character. This type of fan identification, the projection, the daydreaming if you will, might seem juvenile to some, but it is the fuel behind a lot of the fan interest behind certain stars and shows. It is the kindling wood underneath a lot of the chatter, the water cooler talk, that in turn spurs audience interest in existing fans and drives new interest. (Because ratings, book sales, etc., matter; it's all about metrics, and revenues.)

Answer these questions, and I'd argue you are sucking the oxygen out of the room. Out goes the fire. Isn't that what the new comic book writers are doing, when they declare that a certain superhero has a particular sexual identity, or religion, or whatever?

While such decisions are currently trendy, I contend they play to the affinity of one group -- typically a small group -- but do so at the expense of diminishing or destroying the imagination of the rest of the audience, and as a result experience a net loss.

In show business, folks, numbers matter. See above: it's all about metrics, and revenues. 

For additional fuel to this fire, consider the now-iconic ending in 2007 of the final episode of the HBO mob/family drama "The Sopranos," best characterized by a series of answered questions in the last episode (i.e., shootings of various characters) and some totally unanswered hanging questions regarding the main family characters (e.g., everyone in the Soprano nuclear family). While the show was undoubtedly wildly popular and even considered a cult classic during its run, the series' ending likely enhanced its stature above its prior heights. 

Returning to the original topic of stars interjecting politics or social commentary into their show business characters, their performances or even just interviews with the entertainment media, I would argue it simply is not good business.  I believe the most successful entertainers know that.

Before you conclude I am wrong, ask yourself this: When was the last time you ever heard anyone in the Kardashian daughters -- the offspring of a famous Hollywood lawyer -- discuss politics?

That's exactly the point. Those daughters know better, have been taught to know better. For once, follow the Kardashians' example!

Eric Dixon is a New York lawyer who runs his own independent law practice as well as a consulting practice on blockchain technology, media and political / policy matters. 

The Hamilton Controversy: When An Audience Member Becomes The Show

Many misconceptions about the weekend controversy involving the Broadway show "Hamilton"'s cast's shoutout and shaming of audience member, Vice President Elect Mike Pence.

This does not involve the First Amendment. The First Amendment restricts government interference with speech. It has nothing to do with personal or corporate restrictions on speech. The Hamilton cast was perfectly within its rights to do the monologue. The Hamilton producers, owners, sponsors, etc. are within their respective rights to respond, as are prospective audience members entitled to boycott the show (which has been suggested in some corners).

Now, here is a link to a Canadian telecast story (Canadian Broadcasting Company), including video of the actor Brandon Dixon's monologue:


The issue here is not one of rights. It is one of culture.

Is it appropriate -- not whether it is legal -- for an audience member to become "the show" by design of the cast?

Do we -- as patrons, as customers, as the audience -- want our entertainers to possibly call us out, in public, for whatever views we might hold, or even the views we might be presumed to hold?

Finally, the reality may be that the intent of the end-of-show monologue was to deliver not the "stated" message, but this alternate, thinly veiled message: Since we disagree with you (and impute the worst attributes to your character),you will be a target anytime you step out into public, you will never be safe, and you will be made to suffer until and unless you repent. 

The "legal" views of this controversy should be instructed by this important, and universally overlooked, distinction.

Sunday, November 13, 2016

Free Speech and Election Protests

The political climate and low level of discourse among most protestors, regardless of whom they're supporting and whom they're opposing, is leading to "disinformation" and widely-held misconceptions (no, flat out errors) about Americans' First Amendment.

The First Amendment, the beginning of the Bill of Rights in our Constitution, binds and restricts government power. It, just like the rest of the Constitution, restricts what the government can do to the people. 

People can protest other people. That is not a First Amendment violation. In fact, private employers can restrict political speech by employees while in the workplace; that is not a government restriction nor is it a restriction on the "freedom" of the employee. The employee has a right to freedom from interference by the government regarding his or her speech -- but the employer has the right to its freedom of association, plus any de facto requirement to accept the speech of others is compulsion by any other name. That is antithetical to freedom. So we have freedom of speech (meaning, again, freedom from government restriction). We just don't have the freedom to compel others to allow us to speak, to dominate or to have a monopoly on speech, on opinions, or on reactions to speech.