Wednesday, January 31, 2007

Good principle, bad law

Remember those campaign dirty tricks from this past election season? The fliers falsely claiming endorsements, or attempting to fool voters into thinking a candidate belonged to the other party? Or intimidate Hispanic voters? Or give voters an incorrect polling place? Or annoy opposition voters with repeated computerized phone calls?

Barack Obama and Charles Schumer do. And according to the New York Times, they plan to introduce a bill outlawing such behavior on Thursday.

Along with defining these crimes and providing penalties of up to five years’ imprisonment, the bill would require the Justice Department to counteract deceptive election information that has been put out, and to report to Congress after each election on what deceptive practices occurred and what the Justice Department did about them.

The bill would also allow individuals to go to court to stop deceptive practices while they are happening.

I understand and agree with the principle: in my above linked post on the Maryland false-endorsement scam, I suggested that Gov. Robert Ehrlich's campaign should face lawsuits and steep fines for its sleazy behavior.

But practically speaking, the law -- especially the part that allows for immediate lawsuits -- will probably just create a mess. The bill will apparently not apply to honest mistakes. But how do you separate the deliberate acts from the honest mistakes, especially in a world where someone sees a conspiracy behind every mistake?

The only way to draw that line is in court, after a full investigation. And that's not going to happen on the day of an election. I understand the desire to stop bad behavior before it affects the vote, but what the bill would do is provide an avenue for partisans and crackpots to turn Election Day into a circus. Ironically, the act of filing lawsuits could itself become a deceptive campaign tactic, attempting to use smoke to create the impression of fire.

So fine: make deceptive campaign tactics a crime that carries steep penalties. But apply them after the fact. On Election Day, rely on the deterrence value of the new penalties as well as the system we have now: the vigilance of the parties, election officials and the media. That system brought to light all of the acts that inspired this bill.

If we're going to enact Election Day reforms, let's make it reforms that matter. Require election boards to have enough voting machines on hand in all precincts to handle the volume of voters; establish training and ethical standards for poll workers; establish ballot-design standards to eliminate confusion; and provide resources to ensure a fast official response to reports of fraud, not so much to catch the perps but to contain the damage and protect everyone's right to vote.

Update: Captain Ed feels much the same way.

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