by The California Review Editorial Staff
Though it seems that the controversy over SOVAC ignited by our publication two weeks ago – stemming from our November 5th blog post titled “SOVAC Accused of Voter Fraud,” – has subsided without incident, we think it is important to at least put a cap on this story. There is a lot more that should have been brought to the public discussion by this article, but it was overshadowed by the controversy stirred by a single one of the author’s claims.
First: were the author’s claims correct? Was SOVAC in violation of federal election laws? Was or is SOVAC under investigation? Did the author have good reason to believe that their claims were true? Which of their claims were completely ignored in the firestorm?
Second: if indeed SOVAC was in violation of election laws, who should be responsible? Should it be SOVAC, whose members actually participated in the illegal activity? Or is it the Associated Students, who approved the funding for activity that was explicitly illegal?
Third: why is this law on the books in the first place?
The Author’s Claims
Contrary to what you may have picked up from the Guardian’s coverage of our story, the author made several more claims than just “SOVAC is under investigation by the San Diego Registrar of Voters.” The author did his own investigation, and the evidence that he turned up is conclusive. Minutes from SOVAC meetings demonstrate that the wristbands that were intended to incentivize people to register to vote. This is corroborated by a presentation made by SOVAC to Associated Students when requesting funding for their events, in which incentivization was an explicit purpose of the wristbands (slide 23). Additionally, it has been confirmed that the wristbands did earn students discounts at at least one price-center restaurant (Santorini’s, in particular).
Whether or not SOVAC gave wristbands only to those who registered to vote, or if they also gave them to people who did not register, is irrelevant until they can point to a passage in the law that distinguishes incentivization by exchange (giving a service or benefit only upon registration) from incentivization by reminder (giving people wristbands, and the attendant benefits, as a reminder to vote), and then to show that the law deems the former illegal but the latter legal.
The relevant passage of the law itself, 42 U.S.C. § 1973i(c), says that “Whoever knowingly or willfully… pays or offers to pay or accepts payment either for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years…”. Additionally, according to the 2012 California Guide to Voter Registration Drives, issued by the Secretary of State, “Any type of incentive is considered “payment,” even things as seemingly innocent as cookies or admission to an entertainment event.”
As for the actual investigation: it appears that our detractors are correct. The San Diego Registrar of Voters does not have jurisdiction over the law that SOVAC allegedly broke, so it should not be the case that they are investigating SOVAC. However, the author had good reason to believe that an investigation would soon be taking place, since he had been contacted by an anonymous source who had said they submitted a complaint to the Registrar. However, we have been unable to maintain contact with this source, and they have not given us a copy of the documentation of their complaint.
And there was more to the article than SOVAC’s voter registration incentives. The author also talked about SOVAC’s practice of scanning the registration forms they collected. This is evidenced by SOVAC meeting minutes of January 11th, 2012 (section 7, part b) during which they discuss purchasing a scanner in the case that the AS printer is unable to scan documents, and by meeting minutes of January 18th, 2012 (section IX), in which they discuss the storage of scanned forms on a computer in their office. If you are someone who registered to vote at a SOVAC table, then it may or may not bother you that your registration forms, with your driver’s license or social security number, are being stored in this way. But it is certain that without this story, you would not have known about it.
Who is Responsible?
It’s obvious that SOVAC should have researched the laws concerning voter registration before making their presentation, as AS cannot be entirely responsible for researching every last law and stipulation surrounding a funding proposal. If they did that, funding would stagnate forever in bureaucracy while student programs would be left high and dry.
On the other hand, AS should be the brains behind student programs. They should be the force supporting student ideas and plans. Students should be responsible for coming up with and executing ideas, but AS should make sure that these ideas are feasible – including raising objections and asking questions. It may be difficult for AS to figure out which questions are the right questions, but perhaps they should be relentless in asking the basic questions, like, in this case, legality.
But is it reasonable to ask SOVAC or AS to have researched this law beforehand? What if they had researched the laws beforehand, but simply couldn’t locate these provisions? Besides a single paragraph in the Voter Drive Guide, there is no indication that wristbands or cookies or slight discounts on food are federal offenses, which brings us to the next point.
A Bad Law
Regardless of SOVAC’s culpability for their actions, the law they allegedly broke is seriously flawed – how could AS or SOVAC have known about this contingency without memorizing the law?
Furthermore, it is important to examine what the original purpose of the law is. One could argue that making it illegal to incentivize voter registration is an attempt to prevent a market from forming around registering voters. Immediately, this can be dismissed because of the intrinsic rewards already offered in registering to vote. The law is also incredibly broad to the point of being absurd. The idea of not being allowed to incentivize people to vote by even the most “inconsequential means” is ridiculous.
For example, how would this apply to a proposition regarding an increase to sales tax? Would a person be incentivized to register to vote based on the fact that if they do not vote against this proposition, their sales tax will increase? Or gay marriage – would a proposition banning gay marriage be an obvious incentive for gays and people who support gay marriage to register to vote? Should propositions like this be illegal?
Continuing down the path of intrinsic incentives, does the law stipulate that the incentive must be positive? Would a group that was mean or rude to people who chose not to register be guilty of “incentivizing people to vote”? This could be considered a possibility, under the law.
What about incentives after the fact? When you vote, they give you “I voted” stickers. This may seem inconsequential, but it meets the criterion for an illegal incentive, according to the Secretary of State’s definition. A number of businesses give discounts to people who have “I voted” stickers, so even if the stickers themselves do not meet the criterion for an illegal incentive, the businesses giving these discounts certainly do.
What’s more, the law says it is both illegal to give and to accept incentives to register to vote, criminalizing hundreds, if not thousands, of students who registered to vote through SOVAC. Chances are, many of people across the United States are guilty of this crime, as on an individual level, it is incredibly common to incentivize friends or family to register to vote, or even to incentivize them to vote in a specific way – something of which SOVAC certainly cannot be accused.
Although not a perfect article, our fact-checking process only found all but one of Todd’s claims true or plausible, and the exception – the claim of an existing investigation – was made in good faith. The California Review editorial board believes that it is our responsibility to investigate any issue that one of our writers considers important, and sometimes that requires posting unpopular stories or stories that make daring claims in the interest of keeping the student body informed.