That Which Kris Kobach Is About To Wreak Upon Our Courts


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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37 Responses

  1. Avatar Damon says:

    Let the lawsuits begin!

    “After all, refuting bullshit already released into the wild takes an exponentially greater amount of effort than was spent initially generating it:”

    Aww, you mean, like how Russian hacked the election and deprived HRC? Like how Trumps administration is a dystonia nightmare? Yawn. This is just going to turn into another “Resist Trump” campaign from the other side while the Trump supporters will view it as a bunch of libs trying to keep their entrenched rolls in the 1) swamp 2) in their states.

    Wake me up when someone is sentenced to prison.Report

  2. Avatar Oscar Gordon says:

    let slip a torrent of voting rights litigation unseen for at least two generations

    Given how much I hear the drumbeat of voter fraud as of late, perhaps this is not a bad thing. Hell, it might be long over due.Report

  3. Avatar Joe Sal says:

    Ah, legal shenanigans/activism. So be it.

    I only have one thing to address in the above and it is the use of ‘our Republic’. Considering republic in the american sense involves overarching considerations to individual sovereignty, nearly everything in that paragraph is opposite of context. Probably should read:

    “So that leaves us with an interesting question — is protecting the integrity of the ballot box a “compelling state interest” or is it merely “legitimate”? One wants to say that this is a very, very important thing to do — it is the very nature of our Socialist collective state; fair and social gathering and counting of votes is to the body politic what cellular mitosis is to the body of a human being.”Report

  4. Avatar Mike Schilling says:

    Given that the most likely-seeming scenario for this to come to light would be someone showing up to vote and being turned away, what would the remedy be? A post hoc ballot? Or just re-registation for future elections? We’ve never had such a thing before.

    The purge in Florida in 2000, which handed the state to Bush.Report

    • 2000 saw a tornado of litigation. Disastrous, awesome, and awful to behold. And localized to one area: Florida.

      If my prediction comes true, this will be by comparison a hurricane: Disastrous, awesome, and awful to behold. And spread about a large area: every state that either voluntarily or under some form of compulsion which complies with the purges that Kobach & Co. will demand tomorrow.Report

  5. Avatar Mike Schilling says:

    And let’s not pretend that the courts are non-partisan here. It was the “honest umpire” who led the repeal of the 15th Amendment.Report

  6. Avatar Kolohe says:

    Based on n=1 personal experience, if you show up to a polling place and you’re name is not on our voter rolls, this is what happens

    First, we look to see if you’re in a larger database and are in simply in the wrong place.

    But if your name is no where to be found, and we can reasonably determine you live at an address within our precinct, we’ll give you a provisional ballot. The thing is, I don’t think provisional ballots are counted unless the election is close enough to warrant it. Though also in my experience, there are typically less than 5 provisional ballots out every 1000 ballots cast.

    (The dirty little secret of absentee voting used to be that they were never counted either unless the election was close enough to warrant it. This has changed in the past decade as absentee has become more common as a load balancing mechanism and now can be up to a quarter of all ballots cast in my area)

    (There’s also oolies about federal election only ballots for those that have recently moved after the registration deadline)Report

  7. Avatar Kazzy says:

    “If New York truly has so little confidence in the integrity of its state officers, the time has come for the State to adopt stringent measures to prevent official misconduct, not to further penalize its citizens by depriving them of their right to vote.”

    That’s a pretty dope line.Report

  8. Avatar Morat20 says:

    This guy’s the Crosscheck guy, right? The “Clearly if you have the same name and birth date, you are the same person so you’re double registered” guy?Report

    • Avatar Burt Likko in reply to Morat20 says:

      Yep. In theory, there is only a 1:365.25 chance that a mistake will be made using this method. But the more common your name, the more likely it is you’ll have to roll those dice. And if the scope of the cross-check is national, that increases even more.

      As it turns out, my actual name is uncommon in California, but there are a lot of people in California, so I know of at least five other guys who live in California with my same name. Three of them use a common variant spelling of my first name. The cognate would be “Burt Likko” and “Bert Likko.” And thanks to the machinations of Big Data, I have learned that one of those three guys has the same birth date as me though he is five years older. (I found that out when a sheriff called me to inform me that this other “Burt Likko”‘s father had just been killed in an accident. Gave me a pretty bad shock until we sorted that out.)

      However, my actual name is pretty common in the Midwest, where my family’s roots lie. You pretty much can’t swing a dead cat around by its tail in southeastern Wisconsin without hitting a “Likko.” And, a guy with my exact same first and last name is a not-obscure professor of classics at a prominent Canadian university, and IIRC I’ve stumbled across something that indicates his exact birthdate is within two days of mine. Could I be mistaken for some random Wisconsinite, Minnesotan, or exurban Chicagoan, or even more voter-fraudulently, for a Canadian?

      Am I so very unusual here? I doubt it — most of you have at one point or another stumbled across evidence of another person out there in the world with your same name, at least.Report

      • Avatar Kimmi in reply to Burt Likko says:

        My married name’s about as common as Galavan. Which is to say, exceedingly rare. And, like galavan, it has a history.Report

      • Avatar Morat20 in reply to Burt Likko says:

        You forgot the other fun: People move, and who “unregisters” when they move?

        And IIRC, Crosscheck doesn’t have registration dates to compare — or doesn’t bother — which means if you moved to another district, you can get scrubbed in both. (And hey, I betcha rural and suburban voters — you know, the ones that own property — probably move less often than folks renting in the city…)

        In any case, it’s literally the worst possible sort of criteria to scrub voting lists — I don’t think I could come up with a system to create more false positives.Report

      • Avatar Troublesome Frog in reply to Burt Likko says:

        Yep. In theory, there is only a 1:365.25 chance that a mistake will be made using this method. But the more common your name, the more likely it is you’ll have to roll those dice.

        Not actually true. 23 people with the same name have a 50% probability of at least one birthday collision. With a group of 70, the probability reaches 99.9%. You could add the year in, but that’s not uniformly distributed and it still only pushes the collision problem so far, depending on how big your voter rolls are.Report

      • Avatar Marchmaine in reply to Burt Likko says:

        Funnily enough my company builds software that solves exactly these sorts of identity problems. It would be trivially easy (in the sense of “trivial” $M of dollars) to manage the identity and NCOA and Death Rolls of US citizens.

        Except for pesky data silos, privacy challenges and other non-technical issues that would make building a 50-state National Identity System politically rather than technically unfeasible.

        I’m sure my counterparts in the Federal division would be happy to help…Report

        • Avatar PD Shaw in reply to Marchmaine says:

          Yeah, the siloing problem is solved by sharing information, if information isn’t shared you won’t catch the problems. We have a reform-minded Democratic State’s Attorney in Illinois that made election fraud(*) a priority a few years ago, and I believe he was comparing different record systems: looking at death records, looking at property tax records to see if the address actually exists, looking at zoning records to see if its possible for 35 registered voters to live at the address, and looking at voting records from neighboring counties to catch multiple voting.

          (*) Also police crimes.Report

      • Avatar Mike Schilling in reply to Burt Likko says:

        There’s another guy with my name in my city, and he has a son who’s a junior.

        And the first time I heard Burt’s real name, I thought “The baseball player?”Report

        • Avatar Marchmaine in reply to Mike Schilling says:

          Aha, a clue: “The baseball player?”

          Is it, Gus Zernial?Report

        • Avatar Morat20 in reply to Mike Schilling says:

          Oh yeah! I forgot that — Crosscheck couldn’t handle Juniors, Seniors, etc. Father and son with the same name tended to get flagged duplicate, even with different birth dates.Report

          • Avatar Anne in reply to Morat20 says:

            Not only fathers and sons I’m named after my mother nobody checks birthdates.

            When I went to get my first car loan they said you have too much credit extended (I had one credit card) I looked at the list and most of the accounts were opened when I would have been 10 years old or younger. Its easy for me to get my mom to help contest these mix ups but to try to get a total stranger?…not very likleyReport

            • Avatar Oscar Gordon in reply to Anne says:

              Some time ago (can’t find the link, sorry), I recall reading an article by a woman who had a common name in NY, and who kept getting citations meant for another woman with the same name and similar details.

              One of the interesting bits was about how, after these two women met, the CJ system didn’t really care that they kept sending the tickets to the wrong woman, and there was some number of hoops to jump through before it got straightened out.

              So the system can make a simple error like confusing two women, and then demand that the citizens get it straightened out largely by themselves. This does not give me hope that voting roles will be much better.Report

              • Avatar Kimmi in reply to Oscar Gordon says:

                Nothing beats getting the government confused about who you are.

                Actually, i take that back. Faking your death is a total bitch to straighten out, even if it wasn’t you who faked it.Report

              • Avatar Morat20 in reply to Oscar Gordon says:

                And think of it like this — the ticketing system doesn’t appear to be deliberately set up to screw people, but Crosscheck does.Report

              • Avatar Michael Cain in reply to Morat20 says:

                It is my understanding that the Electronic Registration Information Center multi-state organization is much saner than Crosscheck. Among other things, member states are required to use information provided by ERIC to contact and register eligible voters. ERIC membership currently includes 20 states and the District of Columbia.

                For sensitive information (eg, the last four digits of the Social Security number), ERIC requires that states use an approved one-way hash before the data is submitted, then applies a second one-way hash before the data is used. As a result, ERIC’s software can answer the question “Do these individuals’ SS numbers have the same last four digits?” but can’t answer the question “What are the last four digits of the SS number for John Doe residing at 123 Main St?”Report

      • Avatar padraig2112 in reply to Burt Likko says:

        Not only am I not the only First Last name in California, I’m not the only First Last name in my county and if you google me you get not only me but my uncle and my second cousin, all of whom are affiliated with the same university and two of whom got the same degree at that university.Report

  9. Avatar Kimmi says:

    Sigh. This is what happens when you hire the wrong people, to catch the wrong people, for the wrong crime.

    Pollwatchers have observed some… very interesting things in this century.
    Some of which have resulted in jailtime.Report

  10. Avatar PD Shaw says:

    the Kobach Commission has been mostly blown off and limited to publicly-available information on its own authority

    I don’t think that’s precisely what has happened. Blue States are fusing to provide publicly-available information, likely in violation of their state’s FOIA laws. It’s law-breakers all the way down.Report

  11. Avatar George Turner says:

    States that don’t comply shouldn’t have their electoral college votes counted.

    Whew. That was easy.Report

  12. Avatar Mike Schilling says:

    I don’t see why anyone would distrust a commission whose charter is to prove that Hillary lost the popular vote.Report