There is one big problem with the Breitbart.com video released Monday, which is creating a buzz throughout the political interwebs and causing The Drudge Report to declare, in big letters and everything, that “O’Keefe does it again.”
Let’s get this out of the way: It’s extremely troubling that, as Breitbart writes, “anyone can obtain Eric Holder’s primary ballot.”
But problem with this “shock video,” is the claim that it is “proof that in-person voter fraud is a problem.” There is a difference between a perceived problem that could happen and a real problem that actually does happen. James O’Keefe’s team has been “exposing” what they perceive as a problem without actually providing any widespread evidence of that problem.
O’Keefe is engaging in political theatre, which is why he will probably never compile any sort of empirical data to back up his assertion that voter fraud is a major problem and that more voter ID laws are needed in the United States. It’s also why he continues to ignore any empirical evidence that contradicts him — or, worse, takes the easy way out, labels it the traditional combination “liberal” and “media” and has his followers coerced without a single question.
But there are questions. For instance, earlier this year, O’Keefe showed that dead people could vote in the New Hampshire primary. Now, his crew is impersonating without an ID. But why does he never follow through? Well, because that would likely earn him a trip to prison of up to five years, a hefty $10,000 fine, or both.
“It could happen,” said Samuel Issacharoff, a professor of constitutional law at New York University. “If his claim is that it is possible to walk into a polling place and claim to be somebody else and not have to show ID, that is probably correct.
“But on the other hand, does this happen? Do people risk serious criminal penalties in order to cast one vote and try to tip an election by in-person voter fraud? There’s no evidence that there are such practices. There’s no evidence of concerted efforts to have people do this.”
It is important to note that according to a study by NYU’s Brennan centre for Justice, the only issue of voter fraud that photo IDs would solve is in situations like O’Keefe’s that actually get carried out — when one voter knowingly impersonates another and casts a vote. This, however, has less of a chance than you getting struck by lightning or you winning the Mega Millions jackpot, according to the study. In the 2007 Supreme Court case Crawford v. Marion County Election Board, which upheld Indiana’s right to a state law requiring voter identification, plaintiffs could not name a single voter that would have been prevented from voting. On the other side, there was no proof of any fraudulent votes that the law could prevent.
And then there’s the question of whether any individual, for a single vote in a mass election, would even risk the penalties. The Brennan centre writes: “Because voter fraud is essentially irrational, it is not surprising that no credible evidence suggests a voter fraud epidemic. There is no documented wave or trend of individuals voting multiple times, voting as someone else, or voting despite knowing that they are ineligible.”
In other words, voter fraud might be a problem. There’s simply no widespread evidence that it is one. Which is why Issacharoff cites this as an example of “political theatre.”
“It establishes what they say,” Issacharoff said of the video. “Which is that you can go in and pretend to be somebody else. Now, notably, O’Keefe never actually goes forward and casts the vote under these circumstances, because he’s quite careful not to commit a serious criminal act. And this, this is what deters people.”