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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. 

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