Nathaniel Persily
Charles Beekman Professor of Law and Professor of Political Science

Nathaniel Persily

Q. This election cycle has seen a great deal of controversy over voter identification laws. How significant are they in the election process?

Because Democrats and civil rights groups have been extremely successful in getting voter ID laws struck down or suspended for this election, they are unlikely to have much of an effect. Even in those states where we have seen voter ID laws applied in recent elections, the effect on turnout has not been great. For example, in Indiana and Georgia, which adopted Voter ID laws prior to the 2006 and 2008 elections, voter turnout in those states increased, even among African Americans. In other states, where a lot of people don’t have drivers’ licenses, such as Pennsylvania, perhaps ID laws would have had a greater impact both on aggregate turnout and turnout of certain groups. I’m more concerned that these laws are going to be enforced in an arbitrary way, that there’s going to be very spotty enforcement, and there will be long lines at the polls and confusion. If anything, such laws may lead to greater numbers of provisional ballots and absentee ballots being cast, given that absentee ballots do not require ID. Because fraud by way of absentee ballots is much more common than so-called “voter impersonation fraud” prevented by voter ID laws, the ID laws could have the perverse effect of increasing the risk of the fraud they are supposedly intending to prevent.

Q. What is the impact of more absentee ballots?

 Absentee ballots are the ticking time bomb of our electoral system. They are cast with errors at a higher rate than in-person votes, andthey are more ripe for fraud than polling place voting. There are states where we have seen absentee ballots with error rates in the four to five percent range, partly because of the steps involved to ensure that a vote is cast and counted correctly.  Although fraud of any sort is relatively rare in our elections, prosecutions for absentee ballot fraud are much more common than most other types of fraud. While it’s very difficult to get hordes of voters to go from one polling place on a single day to the next impersonating someone else, it’s much easier, for instance, to go to a nursing home over a week and gather 50 or 100 absentee ballots and have an impact on an election.

Q. Is there a potential for fraud in get-out-the-vote campaigns by special interest groups?

The U.S. has outsourced the process of voter registration. Political parties or interest groups are the organizations going out and registering voters. Interest groups often pay people per name they register to vote, which can lead individual workers to just write down names. Voter registration fraud is different from voter fraud, but it does clog the rolls and create administrative difficulties. One of the main factors depressing American voter turnout is a registration system that puts the burden on the voter to re-register every time he or she moves. In other countries, the government takes the initiative to register all voters and keeps better tabs on eligible voters. Unlike other countries, the United States does not have a national list of citizens or a national ID card. This arises from our tradition of respecting voters’ privacy, but it makes voter registration more difficult.

• Dorian Warren
• Kathleen McKeown
• Donald Green

Q. What is the impact of recent redistricting?

For this election, I don’t think redistricting will have a major effect on increasing one or another party’s share of seats in the House of Representatives. For the most part, the effects have been a wash between Democrats and Republicans. However, at the margins, because the Republicans in the 2010 elections were so successful in gaining seats in state legislatures, they have used the redistricting power that they had this time to draw districts that protected their incumbents. Another important area of redistricting that’s going to get a lot of attention over the next year has to do with the issue of race and redistricting. The Voting Rights Act passed in 1965 has provisions that regulate redistricting, including Section 5, which applies mainly in the South. Those covered jurisdictions have to get permission from the federal government for any laws that they pass with respect to voting, including redistricting. The Supreme Court, likely this year, is going to consider the constitutionality of Section 5 and basically ask whether things have changed sufficiently in the last 50 years to justify striking it down as unconstitutional.

Q. What impact will the money pouring into this year’s races, estimated at about $1 billion, have on elections in the long term?

This election will be known as the Citizens United election, named for the Supreme Court decision that opened the spigot for corporate spending on candidate-specific television ads. I tend to think the effect of that decision itself is overrated. Most of the big money coming in is from rich individuals or their closely held corporations. Large publicly held corporations have not been as active, although much of the money spent in this election is coming from undisclosed sources. Citizens United was in some way a decision before its time. That case was about a video made available on-demand for downloading on cable TV. As the Internet becomes the main mode of political communication, it’s going to be impossible for any government agency to regulate these types of videos, ads and other forms of communication. It’s going to become increasingly difficult to regulate the flow of money into politics.

—Interview by Georgette Jasen