Brad Friedman Byon 1/12/2012, 6:05am PT

Long ago discredited, federally convicted criminal, Rightwing con-artist, pretend journalist, and accomplished liar James O'Keefe is pimping another secretly-taped and selectively-edited video sure to be a sensation on Fox "News" and at other Republican propaganda venues. It purports to show several voters showing up at polling places during New Hampshire's primary on Tuesday and giving the names of recently deceased voters to poll workers before procuring ballots to vote under those names.

The video, about which O'Keefe lies on his own website, is certain to add more phony fuel to Republicans' long-unsupported claims that people are regularly impersonating dead people at the polling place in order to vote illegally, an allegation which has absolutely no evidence to support it. The aim of the video is clearly is to shore up GOP attempts to institute polling place Photo ID restrictions, meant to do little more than disenfranchise Democratic-leaning constituencies such as the elderly, minorities and student voters, under the fraudulent guise of curbing "voter fraud."

As New Hampshire does not require a Photo ID before one is allowed to cast a legal vote, O'Keefe uses the video to try and create the impression that voting under the name of a recently deceased person is both simple and regularly done. It isn't. But that's his scam this week.

As usual, O'Keefe's video looks as if it represents something that is damning. That's his stock in fraudulent trade, and that's usually more than enough to reinforce the biases of the incurious who've been long-brainwashed, through a well-organized and well-funded GOP effort, into believing that something Rightwingers say is happening certainly must be happening --- despite a dearth of evidence to show that it actually is happening.

The video was released Wednesday morning at the website of O'Keefe's ironically named Project Veritas organization. It was also published "exclusively" by Tucker Carlson's rightwing pretend news site, Daily Caller. Naturally, the websites of Andrew Breitbart, a fellow professional liar, as well as O'Keefe's employer and a co-conspirator on his phony ACORN "Pimp" Hoax videos, quickly followed suit in publicizing the same misleadingly-edited version of the video.

At the Project Veritas site, O'Keefe lies about the video, claiming at the end of his short article accompanying it, that "the unedited videos from part one of the Voter Fraud investigation" have been made available as well. They haven't. He has lied about that. Again. Moreover, as several other sites reported on Wednesday, it's possible that O'Keefe and his band of merry fraudsters have also broken both federal and state laws.

But setting his various lies and possible criminal actions aside for now, let's first look at the supposedly "unedited" version of the videos O'Keefe offers up, and then I'll be happy to dismantle the underpinnings of this ruse below it...

FAKE SOLUTION IN SEARCH OF A NON-EXISTENT PROBLEM

The videos are meant to buttress the Republican push to implement polling place Photo ID restriction laws in states across the county, in the name of curbing massive "voter fraud" (only by Democrats, apparently, because in last week's GOP Iowa Caucuses, where Republicans set all of their own rules, they chose not to require photo ID of their own voters, even of those registering and voting for the first time on the same day).

By Republicans' own evidence, polling place impersonation by voters --- the only crime that could theoretically be prevented by such laws --- is exceedingly rare, if it even occurs at all. For example, from October 2002 to September 2005, using unprecedented resources to ferret out "voter fraud," the George W. Bush administration's own Dept. of Justice found "scant evidence" of the supposed criminal epidemic. In all, out of hundreds of millions of votes cast across the nation during that period, the DoJ successfully convicted just 23 people for "voter fraud." None of them were for polling place voter impersonation.

While there is almost no evidence that polling place voter fraud occurs, where it does, it is usually a case of election fraud, not voter fraud --- cased where election insiders, who would not be deterred by polling place Photo ID restrictions, carry out the crimes, as in the infamous example of ballot box stuffing that is said to have occurred in Chicago in 1960.

In fact, by way of just one example underscoring how rare actual polling place voter fraud is, in South Carolina, where the state recently attempted to institute polling place Photo ID restrictions, the state has been unable to point to a single case of voter fraud which has ever occurred in the state that might have been prevented by a polling place Photo ID requirement. The same thing was true in Indiana, where the first such law was allowed by the U.S. Supreme Court to stand in 2008.

At the same time, independent study after study has shown that such laws disproportionately affect minorities, elderly, and students. For example, when the U.S. Dept. of Justice recently rejected South Carolina's Photo ID law, finding it in violation of the Voting Rights Act, federals officials found that by the state's own statistics, legally registered racial minorities were 20% more likely to be lacking the type of state-issued Photo ID required by the statute.

Furthermore, underscoring the lack of effectiveness of such laws in preventing voter fraud, even after Indiana disenfranchised voters with their law in 2008, the state's own Sec. of State, Charlie White (R) is now facing 7 felony charges, 3 of them directly related to voter fraud as he allegedly voted in 2010 in a precint where he did not actually live. The state's draconian polling place Photo ID restrictions did nothing to keep even the man running for Secretary of State from committing voter fraud in the contest where he was, himself, was elected to the position of the state's chief election official. (A circuit court judge has recently ordered him removed from the post, in a separate civil case, due to his illegal voter registration, though White is currently appealing that court's order.)

FAKING THE PROBLEM

But what can we learn from O'Keefe's video tape?

We can learn that yes, though there is no evidence that anybody actually does it, one could comb the newspaper obituaries for a list of recently dead people, figure where (and if) they were registered to vote, and then try to vote in their name at the polling place. Again, not that there is evidence that anybody does that, certainly not at the polling place, as there are very stiff criminal felony penalties for doing so --- but, in theory, it could be done in some places.

If, however, what O'Keefe stages in his video was actually being done, it should be quite simple for proponents of polling place Photo ID restrictions to prove. Voting rolls are public records, as are records of who voted. Given the amount of money that has been put into the GOP propaganda efforts to create an illusion of a mass epidemic of "voter fraud", it would be a rather simple job to simply cross-check voter records against death records to show how many "dead people" have cast votes at the polling place in any given state.

Republicans haven't done that, however. Why? Perhaps because it doesn't actually happen.

Why doesn't it happen? Because there are stiff penalties to deter it from happening and, more to the point, it would have to happen in very large numbers in order to actually effect the results of all but the very closest of elections. While it has reportedly happened, from time to time, most often via absentee voting, it is almost never done at the polling place. Notably, polling place Photo ID laws do nothing to prevent absentee voter fraud, which is, far and away, the most common type of voter fraud (versus insider Election Fraud in which insiders manipulate the results in any number of ways, from stuffing ballots, to manipulating electronic voting machines and tabulators, etc. --- all of which are far easier ways to effect the results of elections.)

Are there ways to keep voting by "dead people" from occurring, in such a way that hundreds of thousands --- if not millions --- of legal voters are not likely to be disenfranchised in the process, as multiple independent studies have all shown to be the case when it comes to polling place Photo ID restrictions? Of course.

For one, state and federal laws can be improved to assure that those with death certificates are immediately removed from the voter registration rolls. Problem solved. Nobody disenfranchised. It would also have the benefit of being far cheaper to implement than Photo ID laws.

You'll note that O'Keefe and his unnamed co-conspirators had to rely on the names of folks who had died within just the last two or three weeks, else New Hampshire's current state-wide voter registration database (as required by the federal Help America Vote Act of 2002) would have likely been culled to remove those names from the rolls.

Can the process for removing deceased voters from the rolls be improved? Almost certainly. But that's not the concern of advocates of polling place Photo ID restrictions. Their concern is to keep a certain segment of the population --- the Democratic-leaning part --- from being able to freely cast their legal, constitutionally assured, vote at all.

As the late conservative demigod Paul Weyrich told 1,500 Baptist preachers in 1980, at a convention with Ronald Reagan and Jerry Falwell (see :40 second video at right), Republicans "don't want everybody to vote...As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down."

That, of course, is what these laws are about. O'Keefe, after targeting and successfully destroying ACORN by pretending they committed crimes that they never actually did, is only too happy to continuing helping the Republican Party in their efforts (despite the money he makes via Project Veritas which is supposed to be a "non-partisan", non-profit organization.)

DID O'KEEFE VIOLATE THE LAW YET AGAIN?

In commenting on O'Keefe's latest scam video, UC Irvine law professor, election expert and publisher of the Election Law Blog, Rick Hasen quipped to Talking Points Memo by suggesting that O’Keefe’s and his pals should "next show how easy it is to rob a bank with a plastic gun."

"Who in their right mind would risk a felony conviction for this?," Hasen wrote via email to TPM. "And who would be able to do this in large enough numbers to (1) affect the outcome of the election and (2) remain undetected?"

Of more concern to O'Keefe, perhaps --- a man who is already on probation after having pled guilty to federal crimes following an attempted wiretap plot at the office of a U.S. Senator, and who is currently facing a lawsuit filed by an ACORN worker in San Diego alleging that he violated the state's Privacy Act in secretly video-taping him --- is whether he and his crew have once again violated the law themselves in their latest pretend "investigation".

Hamline University law professor David Schultz told TPM's Ryan J. Reilly there is "no doubt" O’Keefe’s accomplices violated the law. "If they were intentionally going in and trying to fraudulently obtain a ballot, they violated the law," he said.

The law he references is federal USC 20, § 1973gg–10 which, as TPM describes, "bans not only the casting of, but the 'procurement' of ballots 'that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held.'"

That portion of the federal code, however, seems to apply to a procurement of a ballot in a case where the person "knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process."

Though TPM's law experts don't speak to that section of the code (and, disclaimer, I'm certainly no attorney), it seems O'Keefe's scammers may have an out, if charged under it, by arguing that since they never actually voted on one of the procured ballots --- the videos show them handing them back to the poll-workers along with the claim that they're going out to the car to get their ID, since they're uncomfortable voting without showing one --- they never made an effort to "deprive or defraud the residents of a State of a fair and impartially conducted election process".

The New Hampshire state law, however, as highlighted by Think Progress' Scott Keyes, could present more of a legal problem for the O'Keefe Bunch if they are charged for having violated it during their scheme.

Section 659:34 of the New Hampshire code [PDF] makes no distinction about whether or not a person is trying to deprive the residents of the state of a fair and impartially conducted election process. It finds simply that an act of voter fraud occurs if "when obtaining an official ballot" a person "makes a false material statement regarding his or her qualifications as a voter to an election officer...Applies for a ballot in a name other than his or her own;...[or] Gives a false name or answer if under examination as to his or her qualifications as a voter before the supervisors of the checklist or moderator."

The videos clearly show that O'Keefe's secret video-tapers did exactly that on a number of occasions. The video also shows they were aware of those laws in that each of the pranksters worked from the same script in which they didn't, at first, claim to be the deceased person, but rather asked the poll workers: "Do you have a Paul Soucy [or other name of dead person] on the list?"

If they were asked by the poll worker if the registration for that person was Republican or Democratic, they'd say something like "that's the registration." If asked to confirm an address for that name, they'd say "that's the address." All clearly an effort to say later that they never actually claimed to falsely identify themselves as that person to the poll workers.

But the scripts didn't go as planned, and on a number of instances, the fraudulent "voters" clearly identified themselves as the voter in question.

For example, in one instance highlighted by Keyes, at the 12:30 mark in the supposedly "unedited" video above, the poll worker asks O'Keefe's man: "Now, give me your name again?" He responds: "It's, uh, Thomas McCarron." She then asks: "You're at 179 [unauditable] Street?" O'Keefe's man responds directly: "Yes."

That's just one instance where O'Keefe's scammers appear to have violated the NH Election Code by making false material statements and giving a false name and answer under examination, as to his qualification as a voter before the supervisor of the checklist. There are other such instances in the tapes as well.

Keyes also points out that O'Keefe's henchmen may have violated New Hampshire's Wiretapping and Eavesdropping provisions by secretly video-taping the poll workers. It's something you'd think O'Keefe would be particularly careful about, given his past convictions and the legal suit he still faces because of his fraudulent ACORN plot.

In fact, as Keyes notes, O'Keefe even has a page on his Project Veritas site advising "Can You Tape? Learn the rules." The page then goes on to detail the privacy and wiretap laws in various states, as far as where both parties to a conversation must consent to being taped, and states where only the consent of one party to the conversation is necessary.

New Hampshire is a "two party" state. Both participants in a conversation must consent. But it looks like if any of O'Keefe's accomplices are charged with violating this crime, they may have good cause to sue O'Keefe himself in turn, since the information on O'Keefe's own page concerning the New Hampshire law appears to be incorrect!

O'Keefe's page notes that New Hampshire is a "two party" state, but it then goes on to summarize the applicable law here --- which is N.H. Rev. Stat. Ann. §570-A:2(1-a) --- by explaining the law (though not actually quoting it):

It is unlawful to record a telephone conversation without the consent of all parties to the conversation.

Perhaps, since this polling place scam didn't involve any telephone calls, the secret video-tapers felt the provisions against secret wiretapping didn't apply in this case. However, what the law actually says is quite different from O'Keefe's summarized version [emphasis added]:

570-A:2

I-a. A person is guilty of a misdemeanor if, except as otherwise specifically provided in this chapter or without consent of all parties to the communication, the person knowingly intercepts a telecommunication or oral communication when the person is a party to the communication or with the prior consent of one of the parties to the communication...

As Rick Perry might say: Oops.

O'KEEFE LIES ABOUT 'FULL, UNEDITED VERSION'

Finally, since O'Keefe often lies about this part of his scams, let's be clear: Despite his claims to the contrary O'Keefe does not release "full, unedited versions" of his so-called "investigations" on his website, or anywhere else. Yet again, however, in this latest scheme, he lies about that.

In his ACORN "Pimp" Hoax, O'Keefe only released unedited versions of his highly edited tapes (which showed no crimes by anybody at ACORN, though it showed his own) to the California Attorney General as a bargaining chip to avoid criminal prosecution for having violated the state's privacy laws. Until then, he'd refused to release the unedited ACORN tapes, even as many had called on him for months to do so.

In the latest case, O'Keefe offers this lie on his website, at the bottom of the article accompanying Wednesday's release:

(Unlike the establishment media, Project Veritas works to release full, unedited versions of its investigations and stories. To see the unedited videos from part one of the Voter Fraud investigation, click here .)

The video we've embedded above is the supposedly "unedited" version he links to there. However, it is anything but "full", even by O'Keefe's own accidental admission.

In his article he claims [emphasis in original]:

We tested more than a dozen polling places, simply walking up and stating the name of the deceased, and in all but one instance --- where an alert poll worker actually knew the recently deceased --- we were handed ballots.

Note he says "in all but one instance."

This morning, the Boston Globe's Joe Battenfeld ran a story about a "mystery man trying to vote in the New Hampshire primary using a dead man’s name," who "got caught by an eagle-eyed voting supervisor in Manchester, then disappeared before police could corral him."

The "mystery man" was reportedly stopped by Ward 9 supervisor Gloria Pilotte who "recognized the name and knew the man had died within the past 10 days."

According to Battenfeld:

The man, dressed in a suit and tie, did not say why he was trying to vote as the recently deceased person and would not identify any group he was representing. “He said, ‘You’ll soon find out,'" Pilotte said.

That would seem to be O'Keefe's "one instance." Either way, the video which O'Keefe claims shows the "full, unedited version" of his "investigation", shows no such instance.

Moreover, the edited version of his video that is being watched by thousands on YouTube (unlike the so-called "full, unedited version" which has just a few hundred views), features a difficult-to-hear interview with a Ward Moderator identified as Ryk Bullock. The video picks up in the middle of the conversation with Bullock, yet there is absolutely no footage at all of him in the supposedly "full, unedited version" of O'Keefe's so-called "Voter Fraud investigation".

Just another lie. But that's what O'Keefe does for a living. Why anybody in the legitimate media still falls for his scams is what is truly worthy of an investigation.

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UPDATE: Too funny. Now the Republican Mayor of Manchester is calling for O'Keefe and gang to be arrested and prosecuted for voter fraud. Details now here...

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