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Nominate and Confirm

23 Wednesday Sep 2020

Posted by pnoetx in Supreme Court

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Absentee Ballots, Amy Coney Barrett, Antonin Scalia, Barack Obama, Bush vs. Gore, Check Schumer, Contested Election, Court Packing, Donald Trump, Hillary Clinton, Joe Biden, Judicial Activism, Lindsey Graham, Living Constitution, Merrick Garland, Mitch McConnell, Originalism, Phil Murphy, Ruth Bader Ginsburg, Supreme Court, Ted Cruz, Tom Wolf, Voter Fraud

Many on the left practically cheered the passing of Antonin Scalia in 2016, a reaction I witnessed with disgust on my own social media feeds. Now, we should all mourn the death of Ruth Bader Ginsburg, but some of the same people seem almost comically furious with her for “choosing such a bad time to die”, just 46 days before the presidential election! Or, for refusing to step down during the Obama administration, when she could have been replaced with a much more youthful lefty jurist.

Of course, the Left is also furious that President Trump plans to nominate a candidate for Ginsburg’s vacancy on the Court, and that Republican leadership in the Senate plans to bring the nomination to a vote, perhaps before November 3rd.

Trump and the GOP majority are entitled to do that under the Constitution, and they should. Senator Ted Cruz explained the primary reason:

“Democrats and Joe Biden have made clear they intend to challenge this election. They intend to fight the legitimacy of the election. As you you know Hillary Clinton has told Joe Biden ‘under no circumstances should you concede, you should challenge this election.’ and we cannot have election day come and go with a 4-4 court. A 4-4 court that is equally divided cannot decide anything. And I think we risk a constitutional crisis if we do not have a nine-justice Supreme Court, particularly when there is such a risk of … a contested election.” 

This presidential election might be fraught with more procedural controversy than any before. The coronavirus, or its promoters in the media and the Democrat party, has spooked many voters into the belief that going to a polling place in-person on Election Day is too dangerous. This despite the fact that distancing and masks will be required, and the time it takes to complete a ballot does not require “prolonged exposure” to anyone. So now we face the prospect of mail-in balloting on an unprecedented scale, which is an invitation to manipulation and fraud. A couple of examples:

“… consider some of the suspect decisions already being made in various states that deliberately weaken ballot security. The Pennsylvania Supreme Court, for example, voted last week along party lines (the judges are elected) that county drop boxes, including unattended ones, could be used to collect votes. Gov. Tom Wolf, a Democrat, and his party supported the measure, which reached the court by lawsuits, thus avoiding GOP control of both legislative chambers. The decision obviously opens the door to potential fraud because ballots in unsecured drop boxes could be tampered with or stolen. 

New Jersey’s Democratic Gov. Phil Murphy also made some curious decisions. A Jersey friend sent me a mailer he received that was addressed only to ‘Residential Customer.’ Inside, a pamphlet from the county clerk in Bergen County said that a Murphy order ‘requires’ every county to mail a ballot to ‘every active registered voter.’ That raises the chances of thousands of unmarked ballots being stolen from the post office or front porches, practices not exactly unheard of in New Jersey.”

Already a number of lawsuits have been filed in various states over absentee ballots. There have been missed deadlines, disputes over whether certain candidates should appear on those ballots, invalidated pre-filled applications for ballots, and an incorrect mailer sent by the U.S. Postal Service to voters nationwide regarding absentee ballots. Let’s face it: for all the earlier denials by Democrats that the mail-in ballot process was not subject to gaming or fraud, neither side trusts the other. There will be many more disputes as ballots are counted before and after Election Day.

It’s reasonable to expect that a few cases might rise to the level of the U.S. Supreme Count before election tallies are final in some states, as in the Florida recount in the Bush vs. Gore election of 2000. A 4 – 4 tie on the Court would leave lower, state-court rulings in place that could decide the outcome of a federal election. That’s not how the process is intended to work. Needless to say, that’s another reason why Democrats oppose a Trump nominee prior to the election. There’s no doubt they’d push forward with their own nominee were the shoe on the other foot, however, just as Republicans opposed the confirmation of Merrick Garland in 2016.

So who’s a hypocrite? Republicans who said that they wouldn’t confirm or even conduct a confirmation process in an election year, as in 2016, certainly qualify (Lindsey Graham, among others). It must have seemed expedient to stay so at the time, but it was foolish. And Democrats who now protest after insisting in 2016 (and before) that a Supreme Court vacancy should be filled by the sitting president, even in an election year, also qualify (Chuck Schumer, Barack Obama, Hillary Clinton, and Joe Biden, among others). Here’s what some top progressive legal minds were saying in 2016: It’s a duty and obligation for the president to nominate and for the Senate to undertake a confirmation process!!

Here’s the key issue: The president has the authority to nominate Supreme Court justices any time during his term. If the Senate confirms, then a new justice is seated. If the Senate chooses not to confirm, the vacancy remains. That’s how it works. There have been 29 vacancies on the Court in election years, and in 22 of those cases the sitting president sent a nomination to the Senate. As Justice Ginsburg said in 2016:

“There’s nothing in the Constitution that says the president stops being the president in his last year.”

Her purported wish on her death bed, that her replacement would be chosen by a new president, was not hypocritical. It was a wish, not a legal opinion. It was just as “political” as the contradictory statements made by the politicians, however.

Ginsburg also said it’s the Senate’s job to take up a vote, which the Republicans refused to do in 2016. That was their prerogative, however, and the decision does not bind anyone in the current circumstance.

Mitch McConnell is right:

“In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year. By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.”  

Democrats have promised to “pack the Court” by adding seats to the bench for new, ideologically-preferred justices if a Trump nominee is confirmed, among other threats. They should heed the caution of moderates who know how dangerous that may be. The mere threat gives Republicans reason to pack the Court themselves, when they can, which might be as soon as January. Moreover, nothing could do more to undermine confidence in the Court. RBG herself had the following to say about Court packing:

“Well, if anything, it would make the court appear partisan. It would be that one side saying, ‘when we’re in power, it was only to enlarge the number of judges so we will have more people who will vote the way we want them to…’ So I am not at all in favor of that solution to what I see as a temporary situation.”

Well, of course the Court is divided along certain ideological lines, and to some extent those differences break along dimensions of legal philosophy, such as originalism vs. a “living Constitution”, or judicial activism. That’s not to say that the Court is always partisan, however. The process of nominating and confirming justices should not be as partisan as it has become in the last 25 years (see the last link). Let’s not make it worse.

Trump will nominate an able jurist. Senators should meet and independently assess that individual’s legal qualifications and temperament. My expectation is they will vote to confirm, and I hope that vote takes place without rancor.

Note: Thanks to the Washington Free Beacon for the wonderful meme at the top of this post.

Fraud-Free Voting Fallacy

26 Thursday Jan 2017

Posted by pnoetx in Democracy, Voter Fraud

≈ 1 Comment

Tags

ACORN, DiscoverTheNetworks.org, Donald Trump, Ed Driscoll, Electoral College, Electoral Studies, Fake News, Glenn Reynolds, Hillary Clinton, Immigration policy, Instapundit, Pew Center on the States, Voter Fraud, Voter ID


acorn-voter-fraud

I posted the following on December 1, 2016. It seems timely today. The bottom line: voter fraud is very unlikely to have swung the popular vote in favor of Hillary Clinton, but it is all too common.

Democrats have long asserted that voter fraud is rare. Recently, we heard from them that questioning the results of an election would “undermine democracy”. In fact, voter fraud is routinely characterized by the left as “fake news“, and even worse, as a racist narrative! How convenient. But in the wake of the Donald Trump victory, we’ve been hearing about electronic voter fraud from the same crowd that’s been imagining Ruskiis under their beds for months (to steal a phrase from Glenn Reynolds). Fear not: voting machines are not connected to the internet!

This week, however, Donald Trump stirred the pot once again by tweeting that he would have won the popular vote if not for the “millions” of illegal votes for Hillary Clinton. Hilarity ensued, and not only on the left. All the pundits say that Trump has no data to support his claim. He probably never looked for it, and he probably doesn’t care. As Ed Driscoll notes at Instapundit, perhaps “stray voltage” is simply part of his plan.

Trump’s claim really does sound outrageous, but a review of the recent history of actual and potential election fraud shows that it might not be as radically far-fetched as we’ve been told. DiscovertheNetworks.org (DTN) provides a three-part compilation of voter fraud research and cases spanning the last 30 years. Pertinent detail on each case or finding is provided, and each item is sourced. The cases span the country and include fraudulent voter registration efforts, dead and ineligible voters (including pets) on the rolls, multiple registrations across jurisdictions, homeless voters casting multiple votes, fraudulent absentee ballots, vote buying, voter impersonation, and failure to provide absentee ballots to deployed military personnel. ACORN, by the way, is well-represented on the list.

Many of the cases on DTN’s list involve anywhere from a handful of fraudulent votes to several hundred. Of course, it’s likely that only a small percentage of fraudulent votes are ever detected. But there are cases on the list of fraudulent registrations numbering in the thousands, and counts of ineligible voters appearing on voter rolls numbering in the hundreds of thousands and even millions.

One of the studies cited by DTN was commissioned by The Pew Center on the States, published in 2012. It found that there were 24 million invalid or “significantly inaccurate” voter registrations in the U.S. And just before every election, said the report, election officials are inundated with a flood of new and often questionable registrations.

Another study cited by DTN appeared in the journal Electoral Studies in 2014. It said “… based upon extrapolations from the portion of the sample with a verified vote … 6.4 percent of non-citizens voted in 2008 ….” The authors admit that there are reasons to think 6.4% is an under-estimate. That’s especially true given the focus on immigration policy in this year’s presidential campaign. But if that percentage was repeated in this year’s election, and given 24 million non-citizen residents in the U.S. (legal and illegal), then roughly 1.4 million non-citizen votes would be included to the 2016 popular vote total. The researchers acknowledge that this group tends to vote heavily for democrats. The overlap between these votes and those arising from the other kinds of voter fraud by Pew is certainly not complete, so the fraudulent vote total is likely to be well north of 1.4 million.

The electoral college was designed to discourage voter fraud in states dominated by a single party. Vote margins beyond a simple majority provide no incremental reward in the electoral college, the reasoning goes. That doesn’t mean election fraud doesn’t occur in those states or that it isn’t motivated in part by presidential politics. Moreover, state and local races can still be contested in so-called “one-party” states and may be subject to manipulative efforts. In such cases, presidential votes might well ride on the coattails of candidates for state and local offices.

The recent tide of republican success in congressional races and at the state level does not suggest that election fraud is benefitting democrats in more highly contested states. Perhaps it goes the other way or is roughly balanced between the parties in those states. But most people who believe Trump’s tweet would probably say that fraud must be concentrated in heavily “blue” states like California and New York. If so, it would be unbalanced fraud.

The magnitude of voter fraud in the presidential election is plausibly in the range of 1 – 2 million and it could be even higher based on the research and other information cited above. That total, however, is split between the parties. For the sake of argument, if 2 million fraudulent ballots are cast and republicans garner 30%, or 600,000 fraudulent votes, then the contribution to the democrat vote margin is just 800,000 (1,400,000 – 600,000). Hillary Clinton’s popular vote margin was 2.9 million (less than the margin in California alone). Given that total, Trump’s claim is a real stretch, but his “guess” at the number of fraudulent votes is probably well within an order of magnitude. That might be surprising to some detractors.

What should be obvious is that voter fraud is a major problem in the U.S., and it undoubtedly swings some races at state and local levels. I have been lukewarm with respect to voter ID laws, but I am persuaded that they are a necessary step in the quest for electoral integrity. (Whether IDs must be government-issued is a separate matter.) The argument that these laws are discriminatory is true to the extent that we wish to prevent ineligible individuals from voting. That’s a good thing. The argument that it is racist is sheer stupidity: citizenship should bring privileges. That is not a position on immigration policy. Voter ID laws place a simple burden on citizens to prove that they are legitimately entitled to full participation in the democratic process. If you can’t be troubled to identify yourself, you should expect multiple obstacles to sharing in the fruits of modern society.

Postscript: I just ran across this post, which makes some of the same points I’ve discussed above, but it says that there are roughly 20 million adult non-citizens in the U.S. today.

Fraud-Free Voting Fallacy

01 Thursday Dec 2016

Posted by pnoetx in Democracy

≈ Leave a comment

Tags

ACORN, DiscoverTheNetworks.org, Donald Trump, Ed Driscoll, Electoral College, Electoral Studies, Fake News, Glenn Reynolds, Hillary Clinton, Immigration policy, Instapundit, Pew Center on the States, Voter Fraud, Voter ID


acorn-voter-fraud

Democrats have long asserted that voter fraud is rare. Recently, we heard from them that questioning the results of an election would “undermine democracy”. In fact, voter fraud is routinely characterized by the left as “fake news“, and even worse, as a racist narrative! How convenient. But in the wake of the Donald Trump victory, we’ve been hearing about electronic voter fraud from the same crowd that’s been imagining Ruskiis under their beds for months (to steal a phrase from Glenn Reynolds). Fear not: voting machines are not connected to the internet!

This week, however, Donald Trump stirred the pot once again by tweeting that he would have won the popular vote if not for the “millions” of illegal votes for Hillary Clinton. Hilarity ensued, and not only on the left. All the pundits say that Trump has no data to support his claim. He probably never looked for it, and he probably doesn’t care. As Ed Driscoll notes at Instapundit, perhaps “stray voltage” is simply part of his plan.

Trump’s claim really does sound outrageous, but a review of the recent history of actual and potential election fraud shows that it might not be as radically far-fetched as we’ve been told. DiscovertheNetworks.org (DTN) provides a three-part compilation of voter fraud research and cases spanning the last 30 years. Pertinent detail on each case or finding is provided, and each item is sourced. The cases span the country and include fraudulent voter registration efforts, dead and ineligible voters (including pets) on the rolls, multiple registrations across jurisdictions, homeless voters casting multiple votes, fraudulent absentee ballots, vote buying, voter impersonation, and failure to provide absentee ballots to deployed military personnel. ACORN, by the way, is well-represented on the list.

Many of the cases on DTN’s list involve anywhere from a handful of fraudulent votes to several hundred. Of course, it’s likely that only a small percentage of fraudulent votes are ever detected. But there are cases on the list of fraudulent registrations numbering in the thousands, and counts of ineligible voters appearing on voter rolls numbering in the hundreds of thousands and even millions.

One of the studies cited by DTN was commissioned by The Pew Center on the States, published in 2012. It found that there were 24 million invalid or “significantly inaccurate” voter registrations in the U.S. And just before every election, said the report, election officials are inundated with a flood of new and often questionable registrations.

Another study cited by DTN appeared in the journal Electoral Studies in 2014. It said “… based upon extrapolations from the portion of the sample with a verified vote … 6.4 percent of non-citizens voted in 2008 ….” The authors admit that there are reasons to think 6.4% is an under-estimate. That’s especially true given the focus on immigration policy in this year’s presidential campaign. But if that percentage was repeated in this year’s election, and given 24 million non-citizen residents in the U.S. (legal and illegal), then roughly 1.4 million non-citizen votes would be included to the 2016 popular vote total. The researchers acknowledge that this group tends to vote heavily for democrats. The overlap between these votes and those arising from the other kinds of voter fraud by Pew is certainly not complete, so the fraudulent vote total is likely to be well north of 1.4 million.

The electoral college was designed to discourage voter fraud in states dominated by a single party. Vote margins beyond a simple majority provide no incremental reward in the electoral college, the reasoning goes. That doesn’t mean election fraud doesn’t occur in those states or that it isn’t motivated in part by presidential politics. Moreover, state and local races can still be contested in so-called “one-party” states and may be subject to manipulative efforts. In such cases, presidential votes might well ride on the coattails of candidates for state and local offices.

The recent tide of republican success in congressional races and at the state level does not suggest that election fraud is benefitting democrats in more highly contested states. Perhaps it goes the other way or is roughly balanced between the parties in those states. But most people who believe Trump’s tweet would probably say that fraud must be concentrated in heavily “blue” states like California and New York. If so, it would be unbalanced fraud.

The magnitude of voter fraud in the presidential election is plausibly in the range of 1 – 2 million and it could be even higher based on the research and other information cited above. That total, however, is split between the parties. For the sake of argument, if 2 million fraudulent ballots are cast and republicans garner 30%, or 600,000 fraudulent votes, then the contribution to the democrat vote margin is just 800,000. Hillary Clinton’s popular vote margin was 2.1 million (less than the margin in California alone). Given that total, Trump’s claim is a real stretch, but his “guess” at the number of fraudulent votes is probably well within an order of magnitude. That might be surprising to some detractors.

What should be obvious is that voter fraud is a major problem in the U.S., and it undoubtedly swings some races at state and local levels. I have been lukewarm with respect to voter ID laws, but I am persuaded that they are a necessary step in the quest for electoral integrity. (Whether IDs must be government-issued is a separate matter.) The argument that these laws are discriminatory is true to the extent that we wish to prevent ineligible individuals from voting. That’s a good thing. The argument that it is racist is sheer stupidity: citizenship should bring privileges. That is not a position on immigration policy. Voter ID laws place a simple burden on citizens to prove that they are legitimately entitled to full participation in the democratic process. If you can’t be troubled to identify yourself, you should expect multiple obstacles to sharing in the fruits of modern society.

Postscript: I just ran across this post, which makes some of the same points I’ve discussed above, but it says that there are roughly 20 million adult non-citizens in the U.S. today.

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