View From a Height
Commentary from the Mile High City
Sunday, October 10, 2004

A Note From Susan Rogers 

Susan Rogers, the Democratic Election Commissioner for Denver, testified for the plaintiffs in the Common Cause v. Davidson hearings last week. I mentioned that I thought her testimony was both wrong on the facts, and not particularly helpful to her side. Apparently, she was directed to my blog by a friend of hers, and I received the following email:

Joshua -

A friend sent me your blog info.

I'm sorry we disagree on these voting rights issues. I believe that any
infringement on one person's civil rights to protect the civil rights of
others should be well thought through and not unfairly impinge on the rights
of a particular segment of society. I would deduce from the content of your
blog that you might agree with me if we were talking about 2nd Amendment

I believe that voter fraud should be prosecuted when it is discovered.
However, in the past, when suspected fraud has been forwarded on to the DAs
and AG's office there is reluctance to prosecute. In the case of fradulent
registrations it is difficult to find the persons responsible. The people
who are being registered by another person are not the persons committing
the fraud. In other cases, we are told there is insufficient evidence.
Thus, all voter fraud in Colorado remains hearsay.

The ID law currently on the books in Colorado does not stop people from
voting by mail without ID. Nor does it prevent someone from voting
provisionally as someone else. The chance that this would be caught is
pretty slim. I think Judge Hoffman's example on that was pretty clear. All
of the information someone needs to personate an elector is public

In any event, I am much more concerned with the process for counting
provisional ballots than with the ID requirement. The whole concept of
provisional ballots is to protect qualified voters from errors made by
elections officials. We are (mostly) human. A voter should not lose their
valuable civil right because a judge makes an error, or because they lose
their ballot and don't discover the problem in time to correct it, or
because they misunderstand the numerous and increasingly arcane rules
surrounding elections.

Just my two cents...

Susan Rogers

And my reply:

Ms. Rogers,

Thank you for taking the time and trouble to write me. While it seemed to
me that I grasped your position at the time of your testimony, your email
does clarify a few points. And yes, I do think we disagree strongly both on
the balance of principles involved here, and the specific rules proposed by
the Secretary of State. And yet, we can disagree civilly.

I don't believe 2nd Amendment right are either relevant or comparable.
Irrelevant because they're not on the table, and not comparable because it's
not a zero-sum situation. If someone is out walking around with a gun, they
*may* commit a crime with it; but their mere possession of said gun in no
way impinges on my right to carry one. Voting, however, if the very
definition of a zero-sum game. In an otherwise tie election, a vote
improperly denied has exactly, *exactly* the same effect as a fraudulently
cast ballot. There can be no presumption on the side of permitting improper
ballots, any more than there can be a presumption towards denying that

If a DA or the AG is reluctant to prosecute fraud, it is almost certainly in
part because of a fear of being called racist. In other words, their
reluctance is partially a result of the same political dynamic being used to
oppose rules meant to prevent both registration and voter fraud. So far
this season, hundreds of registration forms have been sent to DAs and the AG
for investigation. The fact that Ken Salazar is AWOL on the issue can't be
used as an excuse for preventing other branches of the government from doing
their jobs. Inadequate prosecution hardly makes a crime hearsay, any more
than an unsolved murder remains hearsay.

Provisional ballots leave a paper trail that regular ballots do not. Judge
Hoffman's example was geared towards two people trying to cast provisional
ballots under the same name. Those two pieces of paper exist, signatures
can be compared, individuals questioned. The ID requirement forces someone
trying to vote as someone else either to obtain a fake ID, or to do so
provisionally, where evidence of a crime will be left.

Finally, I share your concern about provisional ballot counting. Counties
face the likelihood of tens of thousands of absentee and provisional ballots
this year. This amounts to replacing machine voting with two sets manual
counts on a grand scale. Provisional balloting was meant as a small-scale
replacement to correct for registrar error, or to allow people to vote
without ID if they honestly forgot it. But given the scale of manual
counting, the possibility for fraud, the time involved, and the pressures to
count quickly, requiring provisional ballots to completely mimic regular
ballots amounts to an abuse of the system.

Now, you know what might be fun? I'd be delighted to debate you publicly on
the issue, either on the specific regulations proposed before Judge
Hoffman's decision, or on general principles after the fact. I could get us
a hall at DU, being a student there, and it might give us a chance to air
these differences in a more impartial environment.

In any event, thanks for reading, and thanks for writing,

Joshua Sharf

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