 Good evening, I'd like to welcome everyone on behalf of the LBJ Future Forum Board of Directors and thank everyone for coming out tonight and weathering both the weather and the parking situation to be with us for an event I've been looking forward to for a while, our discussion on voting rights. Before we get started, I want to mention just a couple of quick upcoming events on the Future Forum calendar. One is Elimination's holiday reception at the Ladyburg Johnson Wildflower Center on Saturday, December 13th. It's going to be a private reception for future forum members from 5 to 6 which is going to include wine and hot chocolate bar and then we'll explore the festivities afterwards. It is family friendly so bring the families with you. The next is an event that we're going to have that's coming soon, probably the first couple of weeks in December on a discussion of the Ebola crisis and whether or not it's a crisis or not, which should be very very interesting. But as I mentioned and the reason we're here is for our discussion on the Voting Rights Act. We're really pleased to host a discussion of this important piece of legislation. We're coming up on the 50th anniversary of the Voting Rights Act signed into law on August 6th, 1965 and voting rights are still a topic of hot debate which you hear in the news media all the time. In June of 2013 the Supreme Court struck down the pre-clearance section of the Voting Rights Act as unconstitutional. Since then, voting rights have continued to be a topic of debate in and out of the courts across the country. Tonight we've convened a group of experts to discuss some of the recent legal rulings. The Texas voter ID law and how and if they may have affected this most recent election. At the end of the program our guests will be available to answer questions and then in future form tradition we'll discuss it over drinks for a while as well. What I'm going to do is briefly introduce our speakers and then let them get rolling. First I'd like to introduce and welcome Joe DeSotel who is communications director for the Travis County Democratic Party. He's worked three legislative sessions in three and in three winning city-wide campaigns in Austin including being the political director for Merrily-Leffingwell. Joe also writes for the burnt orange report. Joe thank you for being here. Next I'd like to introduce Professor Joseph Fishkin from my alma mater University of Texas Law School. He's our neighbor right next door. I always like to have UT law professors here personally. His research and teaching interests include election law and equal opportunity and in February he released a book on equal opportunity titled bottlenecks. He received his BA and JD from Yale and served as a Fulbright scholar at Oxford so he's a pretty smart guy. Thanks for being here. I'd like to introduce Hans von Spakowski who joins us from the Heritage Foundation in DC where his senior legal fellow and manager of the Election Law Reform Initiative. He studies campaign finance restrictions, voter fraud and federal ID, enforcement of federal voting right laws and administration of election. Previously he served on the Federal Election Commission and in the Justice Department providing expertise in enforcing the Voting Rights Act and the Help America Vote Act of 2002. And finally I'd like to introduce our esteemed moderator, Representative Sherry Greenberg. Sherry is now the director of the Center for Politics and Governments at the LBJ School of Public Affairs and a lecturer and fellow of the Max Sherman Chair in state and local government. Many of you will recall that she served for 10 years as a member of the Texas House representing Austin. So Sherry thank you I'm going to let you take it from here. Thank you very much and thank you all for being here this evening. This is certainly an important issue and one that is not new. It's not new in the United States, in Texas, not new to any of us but it continues to evolve. I'd first like to ask each of our panelists to just very briefly tell us how did you land in this seat? Why are you up here tonight? Well I think my name is Joe Desseltel. Again I work for the Travis County Democratic Party right now. I'm also a blogger and I cover a lot of different election issues. I think I'll bring a more practical aspect of the sort of the actual application of this law. I have worked in grassroots work directly with the county tax assessor who does voter registration and actually work to get out the vote and see at the actual voting booth level how this law has affected people. I started back in 2002 in politics. I got an internship with my local congressman, Congressman Nick Lampson in southeast Texas. I'm from Beaumont. I eventually became a staffer. Then 2003 happened with redistricting. I'm sure everybody's aware of that debacle. I think that is very much a part of voting rights. I think what happened there very much affects people's ability to vote and their motivation for voting which I'll talk about later as I think is extremely important. Then I actually worked as an administrator through 2006 and 2008 for the primaries when I saw Obama and the incredible turnout and motivation that he did to voters. Then through there I started my first legislative session in 2011 after moving to Austin in 2010. I worked for Mayor Lee Leffenwell's political director as was mentioned. My experience is very much just with trying to get people to the polls and talking to a lot of voters and figuring out what it is. So grassroots. Yeah a lot of grassroots motivation stuff. Thank you. So one of the subjects I teach at UT law is election law and it's a subject that didn't exist probably about 15 years ago. I happened to show up in law school right after a case you might have heard of Bush v. Gore and as we were all trying to make sense of what this case meant, the interaction between politics and law in the court and voting rights. Suddenly law schools all around the country it kind of occurred to them. Huh we should really have someone teaching election law and the long term result of that is that I am here which I think is a terrific outcome and so from the beginning of my time as an academic I've been very interested in voting rights and campaign finance and other election law questions. The first article that I wrote was about voter ID law so happy to be here. I'm Hans von Spakowski I know you're thinking with that name he's not from around here. That's right I was born raised in Alabama. Joe's absolutely right you know really before the 2000 election hardly any law schools taught election law. Now I've been working in this area for about 25 years. I spent four years at the Justice Department in the Civil Rights Division. I was the voting counsel to the Assistant Attorney General for Civil Rights so my job was coordinating enforcement of not just the Voting Rights Act but the other federal laws that protect everyone's right to vote including the newest law that was passed in 2002 after the 2000 election which was the Help America vote act. I then spent two years at the Federal Election Commission. Federal Election Commission is a federal agency that's responsible for enforcing the federal laws that govern fund raising and spending of money in federal campaigns. So anyone running for Congress or the president the FPC is responsible for enforcing the fund raising rules on them. Unlike a lot of the lawyers at the Justice Department when I worked there I was one of the few that actually had in addition to experience in the law experience in the actual administration of elections down at the grassroots level and that's because when I was a private attorney in Atlanta Georgia I spent five years on the Fulton County registration and election board. That was the board that was responsible for voter registration and running the polls on election day in the largest county in Georgia. I also spent three years just recently on the Fairfax County Electoral Board. Fairfax County is the largest county in Virginia and again that's the board that's responsible for voter registration and election. So I've basically been involved in the election and voting area from the bottom most level where people really do the work of getting people registered and running the polls on election day you know all the way up to the federal level at the Justice Department and at the FPC where they enforce the laws on this. I've also written quite a bit about this I've testified in front of Congress numerous times two years ago John Fund and I wrote a book about election integrity in the United States and you know I continue to write an awful lot about this and do a lot of research into this issue. So as evidenced by your opening comments this is a very broad topic grassroots campaign finance and in fact when I first ran for the legislature campaign finance was one of my issues and then I was on the elections committee and we dealt with a number of issues this was of course before the big case that you mentioned professor but early voting was certainly a topic. There's been some discussion to pull back to limit early voting. We've seen this in other parts of the country. Texas actually has what I would call a pretty robust early voting program. What are your opinions on early voting? Should it remain the same? Should we pull back? Should we expand it? Should we have mail in? What do you think? Well I'll start if you want to go down the line. I'll tell you about 30 something states now have early voting. All of you I'm sure realize that's a relatively new phenomena. You know 15 years ago nobody had early voting. Everybody either went to vote on election day or if you couldn't make the polls you voted by absentee ballot but there was no early voting. Now a little more than half the states have it. There's a couple of problems with early voting that I don't think people think about. The first is that we always complain about the fact that you know campaigns get more and more expensive every year. People have spent a lot of money to run for office whether to the state or federal level. One of the problems with early voting is it makes campaigns more expensive. And the reason for that is that campaigns spend about 80-90% of the money they raise normally in the couple of days right before election day. They spend a huge amounts on their get out the vote efforts, on their efforts to persuade voters to vote for them. If you extend the voting period to several weeks to in some states now a month and a half you've got to raise a lot more money because if you don't do that same kind of get out the vote effort over the entire early voting period as a candidate you're going to lose your election. The other problem with it is that if you're voting over a month and a half it means that voters are not voting with the same base of information. We've all heard of October surprises right when information comes out about a candidate right before election day. Well if you voted a month and a half for the election you can't change your votes already too late. And the final thing on this is and I know this is counterintuitive but there's actually a number of studies done several by American University another one just recently by some professors in Wisconsin that conclude that contrary to what you think early voting does not increase turnout. In fact what they did in the American University studies is they compared states with early voting to states that don't have and you know what they actually concluded that early voting may hurt turnout by just a small percentage and the reason is they concluded was because again if you have to spread the get out the vote effort from a couple of days over a much longer period of time it diffuses that get out the vote effort so it's not as affected and they believe it actually may hurt turnout by just a couple of percentage points so the idea that early voting is this big great solution is going to get people to the polls I think that has been shown to be just just not the case. Well so actually I'm somewhat amazed by that 80 to 90 percent number if campaigns spend all that in the last couple of days I'm not sure what's left for all the advertising that takes up the majority of many campaigns budgets but anyway that's somewhat of a side issue I think the thing about early voting is it's certainly not a perfect solution to any of the problems that plague our election system but it can be a kind of escape valve I guess I would give one cheer to early voting which would be if you talk to people who are even some very conservative people who actually have the responsibility of running local elections on election day many of them would be very unhappy if Texas were to entirely eliminate early voting because overall it would mean a lot more of the people of people who would have voted early will instead be there on election day and on election day things are pretty jammed as it is and often we have some pretty serious delays and problems so the hope with early voting and the hope with no excuse absentee voting which a lot of states have and frankly the hope with quite a few of the election reforms that are of this ilk is to try to create some escape valves try to take some of the steam out of the pressure of getting everyone through this one little bottleneck of you've got to vote on election day here are the hours here's the place you've got to go one thing that I was impressed with Travis County doing recently is allowing people to vote at any location that loosens the bottleneck a little bit and it makes it possible for more people but still not everybody would like to vote to cast a ballot so that's it's sort of one cheer for early voting maybe as an escape valve I mean I found some issues with what you're saying about early voting costing more for election specifically because I think it's more dark money in super PACs that are actually making elections cost more and not early voting periods if people have the opportunity to vote you mentioned it may drop in certain a certain percentage I think that is not the case across the board necessarily maybe in certain states and in certain examples within a margin of error that might have happened but generally speaking you're going to change the demographic and the makeup of the people who are have the opportunity to go vote so if you're talking about one day of voting on a Tuesday you're obviously going to have much different individuals or a pool of individuals who have the opportunity to get to the polls and I think that's incredibly important when you're talking about fairness and you're talking about people's right to vote and so I think on a number of fronts this issue about it costing more money is really irrelevant considering the city of Austin for instance I think has a very restrictive donation limit $350 per individual so it's not going to necessarily cost more maybe a runoff might cost more but you know that we even have issues with our finance laws that we need to address because I think 350 is pretty low personally and I haven't donated 350 to the single candidate but you know there's also a loophole that where one individual can can fund unlimited amount for their money and we've seen that in statewide elections with Tony Sanchez putting something like $70 million of his own money and so I really think if you want to address the fact that elections cost a lot you don't do it at the expense of people's voting rights you do it the way you talked about which is addressing campaign finance laws so you brought up voting rights and that brings up the question of why does the Department of Justice feel that measures to limit early voting are racially biased this is what the Department of Justice has stated I'll just jump in real quick just to say I think it's very reflective of what I said in the beginning about the demographic of people that are going to have the opportunity to vote on a Tuesday versus you have 10 days to vote so okay if people space it out I'll go I'm off this day I'm off that day we're looking at online all the memes right now are about the the corporations that don't allow their their employees to take off for holidays and that's something that we consider sacred in this in this country and if we're going to have holidays why isn't why isn't a voting a holiday why isn't the voting day a holiday we see that taken up in the Senate right now so I'll just leave it at that okay so your question was about the Justice Department right why does the Justice Department feel that limiting early voting is racially motivated or biased well I actually wrote an article about this which you all can read a natural review and I brought copies of it it's frankly it is a what I find to be a rather insulting and patronizing view and what I mean by that is the the the Department of Justice filed a lawsuit against the state of North Carolina the state of North Carolina reduced the early voting days in the state from 17 days to 10 days now they claimed in the lawsuit that this would reduce turnout they they lost in their attempt to get an injunction and that was in effect for this election and North Carolina had record turnout they had more turnout in this election than they had in any prior election but what was what was frankly shocking to me was reading the expert testimony of the experts presented by the NAACP and the Department of Justice and the experts a professor from MIT and another professor literally said to the court that black voters are less sophisticated than other voters and that without more early days they do not have the same capability as white voters to find their polling place identify issues on the ballot and identify candidates and I'm not exaggerating that is what their experts said now if a Republican administration had presented witnesses like that in court to basically say that members of one particular racial group are less capable than others that would have been rightly and strongly condemned by newspapers and everywhere yet this is the testimony that Eric Holder's just department presented in court now it turned out that testimony was obviously wrong and their claims about the law were obviously wrong because the change in early voting times did not in any way depress turnout in the state of North Carolina as I said they actually had record turnout and anyone who doubts that can go to the website of the North Carolina State Board of Elections and you'll see the press release they put out recently in which they noted the numbers and said that this they had record turnout in the state well as I suspect you would agree that ultimately it's an empirical question whether cutting back early voting makes the number or makes the percentage of voters of any particular racial group go up or down regardless of how patronizing it went in the May primary but this year the number of black voters who turned out to vote according to the report filed by an expert in the case was was greater by 30 right in that particular case and professor fish can you were saying well just a is empirical question when we have litigation about these issues we have to fight about not whether it's patronizing but whether the numbers are going to move one direction or another so here in Texas this election cycle we had the lowest turnout we've had in more than half a century that was true nationwide but Texas was a lot worse yeah Texas was 49th in turnout out of the 50 states in the 50th Indiana had no Senate or gubernatorial race on the ballot so our state doesn't look very good now I think it would be very you know tendentious to try to lay that at the feet of the voter ID law that was in effect for the first time in this election because the estimates of how much that affected the turnout are basically a couple of points give or take you know somewhere maybe two to four points at most that four point something was the estimate that the district judge in the case in joining the Texas voter ID law found the most credible some other estimates put it a couple points lower in any event we have bigger problems than that driving down our turnout but I guess from from my perspective stepping back from the somewhat partisan debates about turnout which are always a company these laws and fights about them in North Carolina and Texas and elsewhere it really seems to me that turnout is not the right metric to be using in evaluating the election laws that would be either desirable or legal under the voting rights act I mean the voting rights act is not about protecting the right of the Democratic Party to have higher turnout of Democratic constituencies right that's not whose rights are protected it's about protecting the rights of individual voters both individually and collectively in groups to vote and you know it seems to me that the the change in North Carolina is one that clearly would have violated section five of the voting rights act at the Supreme Court not struck it down the reason that it would have violated section five is that taken together whether Hans is right about the particular racial effects of the early voting I don't know but taken together the restrictions in North Carolina would have certainly failed the test in the sense that they overall retrogressed minority voting strength they made it worse for minority voters than it was before but any event the the Justice Department no longer has the ability to sue under section five in North Carolina so we are arguing about that law and the one here in Texas using a different and more limited set of legal tools on both sides so I guess my my so that would be section four section two section two of the act section three of the act says you can't dilute the votes of any you know racial group and you also can't intentionally discriminate and so I'm sure the lawsuit I'm sure we'll get to the lawsuit in in Texas right which well we might as well just get to it now sure you brought it up and Judge Ramos did say specifically when she struck the law down that it was a poll tax unconstitutional poll tax in her view so we're talking just so that everyone's clear right then quite a bit of litigation in Texas lately yes there's round two rounds of litigation about the redistricting map and then also about the voter ID law and both of these are areas where when section five was still in effect in Texas a couple years ago district judge or special federal courts in Washington and in Texas found that both the redistricting and the voter ID law violated section five of the act but now we're in the current round of litigation over whether they violate section two of the act another well well before before we talk about the litigation shouldn't we say something about the voting rights act overall I mean seems like sure feel free to absolutely well the one thing I want to say about the voting rights act is is that it's probably one of the most successful pieces of legislation ever passed by congress and we need to all acknowledge that well given where we're sitting I certainly think we should and and I brought some numbers that just graphically illustrate this so I think it's important for you all to hear look the whole reason the voter rights act was passed because in 1965 there was systematic official widespread discrimination particularly in places like Georgia and Mississippi and in 1964 the black registration rate in Georgia was 27 percent whereas white registration was 63 percent in Mississippi the white the black registration rate was 6.7 percent whereas white registration was 70 percent in 2004 by 2004 the black registration rate in Georgia was higher than the white registration rate by a percentage point and in Mississippi the black registration rate was higher than the white registration by four percentage points the the census bureau you know it puts out a this great survey I brought a copy of it the census bureau does this terrific survey after every federal election and then they publish a report on it and the survey breaks down turnout by state by race including registration and turnout and you know in the 2012 elections black Americans across the country voted at a higher rate than whites by two percentage points and in many states that were covered by section five of the Voting Rights Act the the registration and turnout of black voters was not only on par with but often higher than that of white voters also in the formerly covered states of section five so places like Georgia Mississippi Alabama those states have the highest number of black elected officials proportionate to their populations than any other part of the country so it's important to know just how successful the Voting Rights Act was and that is the reason one of the reasons why section five was thrown out of the Shelby County case and it's important for you all to understand the difference the main part of the Voting Rights Act is section two section two is nationwide it's permanent and it bans discrimination in the voting context but in 1965 there were a small number of states that congress believed needed extra extra help frankly and doing the right thing and what they what congress did was basically this they said in a small number of states and this was supposed to be a temporary measure it's only supposed to last five years those states could not make any changes in their voting laws without first getting permission to the Justice Department in Washington or a federal court in Washington and the way they figured out which states to cover was any states that had turnout below 50 percent registration turnout below 50 percent in the 1964 presidential election so what they basically took the symptom of the discrimination which was low registration and turnout and used that to cover those states in the Shelby County decision which was last year the supreme court throughout section five why did they do it because after 40 years the data showed that in fact the black registration turnout rate was now on par with and higher than those other states in fact it was better than in the rest of the country which is not covered by section five so there was no longer any need for section five voting right that section two is still there right so do we have any reaction to that yes exactly that that's precisely it hence voter ID because voter ID is designed to get around section two of the Voting Rights Act and that's precisely the point and one of the reasons there are so many high ratio of african-american and minority representatives in the south a lot has to do with packing which also goes back to redistricting in section five yes absolutely so specifically you're you're brilliantly laying out the way it's designed which i think is great um that we can like pick it apart and understand it but precisely i think that's what the courts are finding right now is that there is intentional discrimination going on and when and and when you when you can see the results of it and i mean look at the look at the makeup of the texas house right where who are the senior members a lot of the african adult there's like we have a delegation of about 12 african-american members in the black caucus they are some of the most senior members in the house why is that because they're in the absolute most safe districts in the house in the entire state of texas and part of that is by design tom blay knew this they knew this was going to have to go through the courts that's part of it that gets around strike down section five what's the next thing oh so we got voter ID okay so empirically as a professor explained you can look at the data and you can see uh who this is affecting more and in higher ratios we're finding out that is the same voters that he's saying that it's not affecting i'm sorry but that you go ahead but that is simply not true and i'll tell you why professor fischkin well i'll just say a couple things one is very interesting throughout the history of the voting rights act but especially the last few decades there is a kind of convergence of a weird non-partisan convergence of interest between uh black representatives in the south and white republican representatives in the south because for both of those groups it's very helpful to pack a lot of black democratic voters into a few districts and to have the rest be quite white and republican there's a book called lines in the sand by steve bickerstaff a colleague and friend of mine which who who lays out the story of this process in texas playing out the last couple of cycles as tom blay in particular even though he was in federal congress advanced this goal of moving toward a set of legislative maps in texas in which there really aren't any districts for white democrats it's all majority minority districts or republican districts so there's an interesting combination there of interest that i think results in the pattern um that uh that hans mentioned which is that there are a lot of minority elected officials in the south uh more than in the north and in a lot of other places um so just just briefly on uh section five of the voting rights act and on the shelby county decision it's true uh and this was the vulnerability of section five for the court that the formula that said which uh jurisdiction would be covered by section five was quite old the formula was really best understood i think as a historical formula it's saying the places that used to have a lot of um you know the most rampant discrimination in voting we think that there's still likely to be a problem there until you bail out their processes for jurisdictions to bail out or be brought back in i grew up i didn't say this at the beginning i grew up here in austin actually so don't take this the wrong way but when i walked down the uh south mall at my campus and i see you all who are around here know where this is at and i see the statues of many confederate generals and texas confederate officials um it's true they've been joined by a wonderful statue of barba jordan and you know some other statues that reflect more modern sensibilities but you know there is certainly some sense in which uh the past is not dead it's not even past there's a really remarkable set of studies that have found that racially polarized voting is the highest and by racially polarized voting we mean blacks voting one way whites voting another and also latinas voting one way whites voting another these numbers there's some racially polarized voting all around the country but it is the most intense in the section five former covered jurisdictions including texas although it's not as bad in texas as it is in say mississippi where we are now at the point where more than 85 percent of whites are voting republican and more than 95 percent of blacks are voting democratic that is a sort of extreme of racially polarized voting that you don't see in any other state but the more racially polarized the voting the more one might think that the protections of the voting rights act are particularly important today though it is true that section two covers the entire country uniformly and there are many efforts to litigate things that might have been litigated before under section five under section two there's also litigation in federal court in texas right now where the same judge who is the same district judge who just found as joe just mentioned earlier that who's just found that texas voter ideal law violates section two is going to be holding a hearing soon about this sort of cutting edge question of whether texas ought to be it's called bailed in which means that texas would go back into having to see clearance from the court for it changes to its voting laws so we don't know yet what the standard will look like for bailing in a state and whether any state will be bailed in but i will make one bold prediction it's not that bold which is that if a state is bailed in it will be our state we will be at the leading edge of bail in law if there is one and the reason is that many states have long histories of findings of intentional discrimination but texas has by far the most consistent recent set of federal court holdings that it has intentionally discriminated against minority voters and so given those court findings they're sort of the strongest predicate although it's certainly not a sure thing the strongest predicate that the justice department and and sort of plaintiffs have to attempt to get texas bailed in well we started this with voter id oh and we'll get back to that don't you worry well let me let me talk well first of all let me agree what one of the perverse effects of section five which is now gone is that it may raise the predominant factor in redistricting and i don't know about you but i think that when you know we all worry about gerrymandering and i frankly think that when redistricting is being done what legislatures ought to do is try to keep communities together keep cities and towns together keep counties together but i can tell you that under section five of a state tried to do that if they tried to pay absolutely no attention to the race of the voters in those areas they would have been sued by the justice department and all kinds of other groups say that you have violated the law and the support for section five long after it was supposed to have ended the political support was there as joe said for a very perverse political reason because black democrats liked it because it gave them easy safe districts and white republicans liked it because it gave them safe districts because they would drain democratic voters out of suburban areas and put them into urban areas the urban areas become safe democratic seats the suburban areas become safe republican seats and so there was what i think was this perverse political alliance between the two parties who just loved this system of making race the predominant factor i don't think race should be the predominant factor in redistricting in fact i don't think it should be considered at all now on voter id very quickly this idea i'm gonna ask a question actually about voter id all right and i think we need to to set the stage a little here because frequently what we hear in tandem is voter id and voter fraud that what we hear is people are saying we need voter id because of voter fraud and certainly we can look and see that there are errors that are made um clerical administrative errors so when i went to vote recently my middle name the one of the um one of the vowels that should have been an a was an o okay so that's an example of just a pure somebody typed it in wrong they they they knew what they thought it should be but i don't use that common spelling or at least my parents didn't so there you have it that's a clerical error that somebody was typing in but is there significant evidence of voter fraud because that's certainly what we hear many times is um the reason for these voter id laws well i wrote a book two years ago that's an entire book because i got tired of people saying oh there's no voter fraud in that state which frankly makes me laugh because it's so untrue i wrote a book two years ago that is just talks about case after case after case of voter fraud across the country that's actually a funny claim coming in texas and i i don't want to you know with all due respect to where we are um you know i was looking at a book uh by a professor at from the university kentucky by named tracy cambell he's written a history of voter fraud in the united states and he says you know one of the most infamous incidents of voter fraud in the 20th century was ballot box 13 okay which i'm sure most of you know about i did just some quick checking september you've had four people in donna texas three already convicted another one indicted for buying votes with cash and cocaine you had a conviction in woodlands road texas people voting in woodlands when they don't actually live there something else that voter id can potentially stop there's all i have a whole chart here of convictions over the last 10 years in county after county in texas of voter fraud the point is is that voter id is only one way of preventing fraud that's not the answer to all different kinds of fraud but it is to various kinds of it and this idea that voter fraud obviously the voter id keeps people from voting has been disproven in state after state after state so i want to pick up on the voter fraud issue though because i think you you brought up an interesting point here which is voter id and voter fraud so the cases that we hear about a lot of voter fraud don't involve id's um you were talking about issues that this chart includes two cases of impersonation fraud voter id can also stop people from registering and voting in places where they don't live there's been many cases of that in texas it also can potentially stop people who are in the country illegally from registering in voting certainly so but i just wanted to have a bit of a broader discussion here that there are various types of voter fraud um and uh in fact i think that there was quite a bit of testimony in this in the texas case was that was that right regarding voter fraud either either one of you well it sounds like to me i'll just make a quick comment that the the law obviously worked in those instances whatever law we have that resulted in convictions clearly there was a law in place and people were brought to court and they were found guilty so i mean not the the idea that people might want to fraud the election of course that's real the idea that people can fraud the election and not get caught is the boogeyman that's what we're that's what i think it's a discussion anybody who studies voter fraud i hesitate to say the other half of the sentence because i'm gonna contradict me say no i don't agree with this i was gonna say anybody who studies voter fraud would agree that it is far easier thing to stuff a ballot box than to get a large number of people to impersonate others and try to vote in person uh we have a history of not only ballot box stuffing but you know in various places in the country um absentee ballot fraud on a large scale like you know someone taking and filling out a whole pile of absentee ballots for people who are in a nursing home or something like that and the thing about those types of fraud is they're significant and worth doing something about because they have the potential to change election outcomes and what we're talking about fraud it seems to me we're not really talking about an individual rights question we're talking about a structural question of protecting the correct outcome of the election so we ought to be focused on and concerned about the types of fraud that have the greatest potential to do that now i'm interested in i don't maybe fully understand the claim that um voter id law tightening up the voter id laws because of course in texas we always have had voter id laws the question is whether what forms of id count and the recent change so your student ids don't count by the way right yeah i mean the recent changes uh that we're discussing and they're being litigated have to do with removing the old set of ids which i've voted under before you know the old set of rules say a utility bill the voter registration card various forms of documentation will suffice to prove that you're you in combination with your signature and the new regime is that you need a government issued current unexpired photo id from a short list that basically for most people means a driver's license or the kind of non driver card that you can get from the dmv that's pretty much like or concealed weapon or yes there's a concealed weapon permit i mean the much political hay was made about how you can use the concealed weapon permit and not the student id and i think everyone can see why the party that voted for that might have picked that one and not the other but you know i think that's just a little bit of a side show the question indeed to my mind that's that's more interesting is what type of fraud will changing this id law prevent and who will be disenfranchised if anybody by this law so those are i think the real questions and as far as what type of fraud it will prevent clearly this would do something about impersonation fraud where you you know show up at the polls trying to vote as someone who is dead or something else it won't help with i was very interested to hear you bring up the prospect of you know non-citizens voting or potentially illegal immigrants voting because i i haven't been at this issue very long i've been studying this issue for only about you know 10 years but at the beginning of when i was looking into this issue the conservatives who were making arguments about voter fraud did not often bring up the issue of immigrant voting it was kind of a side point now today i noticed there's a little brochure from the heritage foundation as we we got as we came in tonight and it puts as the first bullet point number one you know possible immigrant voting or non-citizen voting which is yet another sort of interesting potential problem in elections that doesn't seem to happen very much and that id laws don't do anything about because as you know you can get an id as a lawful permanent resident you can have a driver's license just like anyone else so requiring you to have a driver's license instead of a utility bill which is what we're talking about won't affect that and it's hard for me to see how it would affect non-resident voting since your utility bill says you're a resident just as well as your id does but but these laws do aim at impersonation fraud and so we have to weigh how much impersonation fraud there actually is um against the burdens on people's right to vote and i'm somewhat surprised at the claim um i think you i think you may be pushing it they're over claiming a little when you say it's been disproved that i'll be happy to answer that well sure i'll be happy to answer and then quickly and then we're going to open it up to our audience first of all he is absolutely right absentee ballot fraud is a big problem it's it's been proven in texas and many other states and that's why in states like wisconsin kansas alabama they have passed a voter id law that provides uh requires not just id for in-person voting but for absentee voting also to prevent that from happening uh second of all uh there is a problem with non-citizens registering and voting in our elections i've been writing about it for 10 years and about a week before this election there was a study released you all can google this and find it by some professors at university of virginia i'm sorry old dominion university and they looked at congressional survey data and they estimated that in the 2008 election 6.4 of the non-citizens in the country voted in the election illegally now i know that's a problem because in my county alone in virginia when i was on the election board we discovered almost 300 individuals who were not us citizens who had registered for our elections about half of them had voted in multiple elections and we frankly uh sent that data over to the us attorney's office so they could investigate and prosecute they ignored it and did absolutely nothing about it i'll just close by saying let me tell you why it's been disproven that voter id suppresses votes state of georgia has had a voter id law in place now since 2008 georgia because it was a state covered under section five of the voting rights act keeps racial data on all its voters so they know exactly how many black georgians hispanic georgians white georgians voted in the 08 election the 2010 election the 2012 election in all of those elections where opponents said the turnout of black voters Hispanics would go down instead it went up and it went up at dramatically larger rates than the increases in white turnout in 2012 the us census survey says that blacks voted at a higher rate than whites in georgia by one percentage point and that's a state with a strict photo id law indiana's had a photo id law in place since 2008 that's the case that went all the way to the us supreme court the us supreme court said voter id is perfectly constitutional in 2008 uh not only did the voting of uh black indian indians go up dramatically but barack obama won the state of indiana with their new photo id let deal on place first democrat to win that state in decades thank you was your georgia data just for 2008 it covers 2008 it covers 2010 when barack obama was not on the ballot and in fact the increase in 2008 in black in the overall turnout and of black voters was larger than almost any other state in the country including all the states without photo id and the same has happened in other states that have put in photo id laws it has not depressed the turnout and in fact you doubt this nat cone of the new york times has an article yesterday very very very liberal guy who says in his article that uh this idea that there are huge numbers of people without id has been grossly exaggerated and that id's have had almost no effect on elections i i have to say i have to say two things okay i'm sorry so one is this is the social science uh nerd you're getting uh when you ask me to be on this panel but that that old dominion study which came out just before the election uh certainly a very eye-opening number to suggest that thousands and thousands maybe hundreds of thousands six percent of all non-citizens are voting crazily out of whack with all previous estimates so i was curious what happened what what did this study do and the answer is this they have an internet based panel it's you gov which sometimes does political polling based on internet sort of semi-self-selected participants of the 30 000 people in the panel some number of them check the box saying are you a citizen no and did you vote yes uh and of those people they they were able to verify that five of them out of the 30 000 actually did vote and they check the box saying are you a citizen no now the only thing about it is this is a survey that you get you know three gift cards and various things for filling out so worth asking the question are people you know sure that they're checking the right boxes on every item and good percentage i think close to half of the people who said i'm not a citizen participated in a prior panel of the same study a couple years earlier and said yes i am a citizen so unless a lot of people are renouncing their american citizenship while hanging out in the united states and uh voting in a lot of our elections i suspect that there may be a problem here with these five people just checking the wrong box but the the point that is more of more substantive interest that i wanted to make and i'm sorry i know i'm eating uptight was is just briefly this i really don't think turnout is the right means that we should be using to assess whether people are being disenfranchised so there's a there's a um plaintiff in one of the lawsuits against the voter id law who's from austin whose name is eric kenny who has been trying for a few election cycles now to get the id that he needs to vote because he's not allowed to vote absentee because he's not elderly disabled etc a lot of people have different reasons that they can't get it his aside from that he's extremely poor he scraped together the small amount of money required but his birth certificate there's a slight error on it it's got his last name off from his current last name and actually the only way that he can get the underlying documents that he would need to register to vote in texas appears to be to get a lawyer to go to court for him and change his name officially so that his birth certificate will match the name under which he's correctly registered to vote now it's very easy to say well sure but that's just an extremely small number of people who have a circumstance like that and i think that's right it's really not that many people who have circumstances that make it actually impossible for them to get the current uh the documents that they would need to get voter id laws but that doesn't mean that they're any less disenfranchised and i think we ought to step away from the question of you know does this affect turnout more because people are more confident in the elections does it affect turnout more because people are so mad about these laws that they go vote as they say in georgia north Carolina black turnout is higher because we so you know hate these laws i think we need to put turnout to one side and just say here we have a burden that's causing some percentage of people to not have the id they need to vote and i think you know the district judge in texas said four point seventy percent i think it may be only more like one or two percent but even if it's only one or two percent of the people the question is uh the deprivation of constitutional rights that is involved here in not being allowed to vote which is pretty important especially if you're someone who is disenfranchised in a lot of other ways in american life uh we need to ask whether that's justified and i think that's the real question not turn up all right so i want to thank our panelists for this very robust discussion and um i certainly think that having divergent views makes all of us in fact think more so thank you very much i want to open up to any questions that you might have in the audience is there a mic or do they just step on up? Step on up? Any questions? I'm a former Marine Corps officer and at any given moment i thought that 20 percent of my range was for something wrong and there's a certain percentage just you put a law in a place that's going to break the law and make a rule and define what around it was uh how does that factor into voter fraud or uh people violating the voter right i mean so if there's five percent of voter fraud we don't want any of that at what point do we need to make some corrections to the system to accommodate that or uh the voter right or the voter fraud is that much to do about well i think look elections are fundamental to uh a vigorous democracy and the only way that works is if you can have confidence that um the election when you go to vote your votes could account and the person who got the most votes wins and anytime you have fraud that changes the outcome of an election or steals the vote of an eligible voter that's affecting the ability to for the democracy to to have elections and do it and i think you should take basic steps i i want everybody who's eligible to vote but i've seen too many cases of voter fraud including i said in the book i go through cases where it changed the outcome of elections and these aren't old cases many of these are recent cases and that means you take basic steps like you require id for in-person voting and for absentee voting you require proof of citizenship when people register to vote you do something else just just very basic a lot of states aren't doing which is uh if you're called for jury duty you know you have to fill out a form under oath ask you a series of questions and one of the questions they ask you is are you a u.s citizen and that information needs to be sent back to election officials so they can take that person off off the registration list there's a loss who just been filed in maryland because a voter group there discovered that thousands of individuals in one county alone in maryland had been swearing under oath under penalty of perjury they were not u.s citizens and that and yet they were kept on the voter rolls and haven't been taken up that's all very basic stuff you should do to secure the integrity of the election process just a quick follow-up i appreciate your answer it seems like there's a vigorous effort to stamp out voter fraud and most of the things i wish the same effort was going into creating the opportunity for people to vote okay well i'll answer that by saying that again go to the u.s census the u.s census bureau does a survey after every federal election of non-voters and this idea that large numbers of people don't vote because they can't get to the polls or because they can't deal with the procedural hurdles of voting is a myth the the census bureau survey asks people why did you not register or why did you not vote and the number of people who don't do that because of some kind of procedural issue is a tiny percentage is at the very bottom of the survey so i think you wanted to chime in here the reason people don't i don't finish this the reason people don't participate the reason we have low elections the biggest reasons they give is they're not interested in politics they don't like the candidates and they don't think their vote's going to make a difference that's a cultural issue that is not an election administration issue i think part of that cultural issue is the fact that we have laws that demotivate people from actually going and believing that their vote will count when they get there one of the things that i discovered when we were doing a lot of voter registration is very educated people people with college degrees working in the tech industry here in austin didn't want to register to vote because they were more afraid that if they went oh they had heard of there was a there was a voter ideal they don't know they just moved here i'm like you can register you can register today right now i can help you and they just had a lot of questions and just it's you know i could just imagine these people have expendable money they have expendable time so it's not about a poll tax it's very much about the fact that not whether they have integrity of the the vote themselves but whether the vote actually matters if they go to the poll in the first place and i think motivating people and certainly on our side the democratic side that has been a major issue and you can tell across the board motivating democratic voters and what our base is actually what gets to them gets them to the polls in the first place and i know of the the kinny who had that who had that trouble and he went through hours and hours of bus rides and spent money that he basically didn't have to try and do this because it was his culture and the way that he was brought up by his parents to vote and then that was an important thing i see another i saw one here six thousand people who had checked off non-citizens along the jury summaries but were registered to vote and he claimed that this was clear proof of non-citizens vote and i asked him if you were a very low income worker whose boss said you miss a day of work i'll find someone to take your place if you had to show up for jury duty you may lose your job so there's a pretty powerful incentive to check that non-citizen vote now look at the incentive on the other side what does a non-citizen gain by fraudulent rebounding what's the most mentioned well i'll be happy to send you take a look at the chapter in my book that deals with non-citizens because in their eye detail prosecution after prosecution after prosecution and conviction of people who are not us citizens who voted and the where the reasons they did it was because it's easy to do and get away with and they're living here they want they want to vote and about 25 years ago the us justice department prosecuted the largest voter broadcast in the history of the justice department and included in the convictions were about two dozen people who were not us citizens who had registered and voted in that election and the head of the ins and people who interviewed them said well the reason they frankly did that was because the voter registration card that they got when they registered was a ticket to getting other forms of identification and in fact if you look at the i9 form you know that's a form an employer fills out when you get hired that's one way of establishing your id so they use it as a ticket to get other forms of identification it sounds dumb to us why would you do it but the evidence is there and there have been all kinds of convictions all over the country of people who aren't citizens registering and voting elections which is a federal felony it's it's a federal felony that actually causes deportation and there's been a a few notable cases they're rare but including one in one in texas of a norwegian man who went to get his driver's license because as i mentioned before non-citizens can get driver's licenses in the u.s. raises questions about how the voter id law will help with this problem of non-citizen voting the uh this guy went to get his driver's license they asked him are you a citizen no uh then he went home and a voter registration card eventually appeared in the mail somebody had obviously checked the wrong box on some form he voted and and faced prosecution and serious consequence for that so i think there's there's plenty of noise in the system that can cause people to wrongly believe that uh that they are entitled to vote when they're not and i don't doubt that there have been some cases of non-citizens voting i i'm a little skeptical but there are large numbers of deliberate cases of non-citizens voting based on the you know various uh articles about it that that i've read and i know that my co-panelist here disagrees with that but i do think that we have to keep in perspective the point that no one really alleges that uh election outcomes are regularly being changed by uh even the the even the claims um in your book of non-citizen voting to find election outcomes being changed you need wholesale fraud and wholesale fraud is best done by being an election official and stuff in the ballot box yes i just uh i think we all agree that voting is a fundamental right in this country and we ought to be making my philosophy is we ought to be making it easier to vote not a partner to vote i'd be interested in what the panel has to say about online registration and online vote i'd like to say something first just because uh travis county here on the work for the democratic party uh bruce elf on our tax accessor collector who is also an elected democrat uh pushed to have this piece of legislation legislation passed last session of course it did not pass for online voter registration not the same thing as online voting you would you can submit a registration form online uh be registered to vote absolutely a great thing to do it would be much easier we could go out with ipads and get people registered to vote um but you know it's unfortunate that that uh that that's the case that we don't have laws like that i think there are a lot of other things that we can do as well to expand uh the opportunity for people to vote i know in travis county you can look at we're one of only 15 counties the entire state uh that actually increase voter turnout we're the only county of the top 15 in the state excuse me uh to increase voter turnout in this election and you can look at what do we have we have early voting where you can vote anywhere and you we have election day where you can vote anywhere i mean i think of anything besides the fact that we're talking to lots of voters and trying to motivate people that had a lot to do with it the way we we allowed for more people and more voting at more locations and i know one of the interim committees of the legislature um had had a hearing on online voter registration i think this is an issue that we'll see again in this session so stay tuned i'll deal with online voting very bad i think voting registration vote he asked for online he asked two questions he answered voter registration he's answering the online voting in the late 1990s uh the secretary of state of california put together an internet voting task force first task force to look at this in the country good idea because he got a bunch of folks from silicon valley who are our experts on this to come in on this committee they issued a report recommending strongly against any form of online voting because what they said was is the the structure of the internet has inherent security problems that cannot be solved um the national science foundation did a similar study about five years later came out with exactly the same recommendation and just a couple of years ago the district of columbia decided well they didn't really want to listen to that and they decided they would have online voting and they were so confident in the security of their system that before they put it in play they issued a challenge they said we're going to put this system up for 24 hours before the election and we challenge anybody in the country to try to hack into it so a professor right at the university of michigan a computer science professor gave this to his class as a project okay within 48 hours not only had they hacked into the system they had hacked into it and made it so that it would change votes and it they put in a thing so that when you actually cast your vote it would play the michigan fight song so do they have our credit card numbers too no but the point is the the internet itself has inherent security problems that make online voting any for any time of the foreseeable future just impossible i i think i i mean this is the point where i basically agree with you i i also think that the spirit of your question regardless of the application to internet voting the spirit of the question uh is worth paying attention to which is you know not everybody needs to vote the same way we can have different routes to voting we can have some people voting absentee who uh have trouble actually getting to the polls are actually waiting in line there's plenty of categories the texas doesn't recognize like people who are taking care of a small child who may have a lot of trouble standing out there for the several hours that it often takes um to cast a ballot in person and i think you know uh absentee ballots are are one way but we should be thinking about having more than one path because there's a lot of people in different circumstances and if we actually care about um everyone having an opportunity to vote it's it's worth not making everyone kind of fit into the same straight jacket how are we on time okay so sounds like we have time for one more question is that correct okay so we'll do one more official question and then we will all be available and i see somebody way in the back so yeah it's difficult to get called on when you're way in the back you know we're gonna get your votes because we don't allow any kind of percent of voting that's so so we've got two parts of the single member district state district so the elections are happening in the primaries and we once did your elections we have two choices that most of people didn't didn't actually ask for these candidates to be on the ballot they've got very limited choice so that's the question you've got um what what do we do to actually okay so so not an easy question uh why is uh turnout so low and um i don't know if this is one that can be answered quickly in a few seconds it may be one that we need to conclude on and see if we can discuss um offline is it we're given our discussion of online voting i'll just go quickly i mean i do think that if everybody were registered all the time you would see an increase in voter turnout a there it's obvious because you couldn't you could hardly have less but you're gonna see more uh second of all i think the redistricting which is a whole another part of voting rights i think does have a huge effect and going back to the very beginning of this conversation the money the more you have districts that are less competitive the more you focus those resources including uh campaigns and grassroots organizing and door knocking and phone calls you're going to concentrate more and more on that smaller portion of the population that votes and so i think all of this stuff that very much has to do with voting rights does affect the turnout i'm sorry i have to disagree canada um i forget how long ago canada moved to a system of automatic registration thinking that that would somehow increase their turnout didn't do it i wrote a chapter the american bar association did a published a book on um voting issues i wrote a chapter looking at the national voter registration act a motor voter right and remember motor voter was passed and pushed in 1993 because everyone said oh if we just make it easier to register turnout will increase well you can look at the data you can look at the statistics and it did not increase turnout well if the survey the survey from the census bureau makes it clear that registration is not an issue that keeps people from voting it's a cultural societal issue people not being interested in the candidates all of those things i talked about look in 2008 we had the highest turnout the presidential election was three three decades i think well it was because people were interested in the candidate you know barack obama uh inspired a lot of people to get out and vote you get you get candidates people are interested in they'll turn out and vote but this idea that that the registration process is that that's keeping people from voting that all the data shows that is simply not well i don't think you can on one hand say it's a cultural difference but then say well because canada because obviously we're a different country and we wouldn't even have the voting rights act if we were the same as canada well we have the same history the issue is the issue is canada the red making it easier to register motor voter made no difference motor voter is not that's true motor voter changing the long term turnout uh turnout trend that's a very small point we're talking about these changes in the face of a long-term decline and in voter participation the question of of what's at the root of that long-term decline i think that the questioner right who was asking originally was bringing up some some important points about redistricting and single member districts and the choices voters have before them the question of whether voters are excited about the candidates or not it's not just cultural you know it's also how we set up our system and there's a there's a political scientist whose work i uh i think is very important on this point shanto ayengar who has uh has shown that essentially you can't really persuade people to vote for your candidate with tv ads but you can persuade some of the people who are going to vote for the other guy to not vote and i think that's a lesson that you know our campaigns have learned well and have managed to demoralize a lot of people and convince them that they don't like the candidates don't care and don't want to vote and i think that's been a successful strategy for some candidates on both sides over the years the net result of which is you know a continued downward progress i i think that whether universal registration would have a big effect on turnout is hard to know but i do think that it's worth thinking about how we can remove the barriers so that for the people who do have a hard time voting now uh and who want to vote and who care about it at least we should make it possible for them to vote even if they don't move the needle of the overall numbers that much can i add one caveat to this and and as you you know you know michael mcdonnell have you seen right look there's a guy at george mason university named michael mcdonnell he has this whole election project everybody goes and looks at his data and he actually says that this idea that there's a been a long term downward trend and turnout is actually incorrect and the reason he says is that uh those the figures normally use to figure out turnout our citizen our voting age population the problem with using that number is there are large people in the voting age population who are ineligible to vote you know people who are in prison people who aren't us citizens they're not eligible to vote and by not including those taking those numbers out as the prison population for example has gotten bigger it has made it look as if turnout has gone down if you actually go to his website he adjusts for all of those so that he's only looking at um voting age population that's eligible to vote and if you look at those numbers actually there doesn't seem to be a long term decline it's it's been pretty steady for i think that's a problem in itself though it raises the question of why is our prison population growing so fast why are so many more people losing their right to vote why are they not have to be another nine they're another night well it will but but if you're going to say there we're taking these people people out of this equation american citizens i think that is an issue i think that's a huge problem you're questioning the whole premise of saying because you these people don't because we've already taken away their right to vote is what i'm saying all right so i want to thank you all for your vigorous discussion and i want to thank you for your thoughtful questions on that note we will adjourn and continue the discussion thank you all very much