Cross-posted at Project Vote's blog, Voting Matters
Weekly Voting Rights News Update
By Erin Ferns
For those of us who believe that democracy works best when all eligible citizens participate, the influx of new voters makes for an exciting presidential election year. Of course, with the excitement and high expectations of turnout comes controversy and partisan resistance to the new crop of voters.
Battles over accommodating, verifying and counting these new voters are plaguing states across the country with everything from partisan initiated voter caging plans to statewide practices of voter purges, as outlined in Wired this week.
One key battleground state, Ohio, exemplifies the various issues many new voters face across the country this year. In the last few months, the GOP has been generating a perfect storm in Ohio, the state that has been called the "new Florida" for the 2008 presidential election.
Bucking her largely partisan opponents over issues such as voter caging, voter list maintenance, and Same Day Registration, Secretary of State Jennifer Brunner has taken commendable action to defend Ohio voters by issuing directives and halting voter suppression tactics, but in Ohio and other states the legal battles over voting rights seem to escalate daily in these few weeks before the election.
The Legal Battle Over HAVA Matching
Under the Help America Vote Act of 2002, states are required to consolidate voters into one statewide database. However, "the federal law, for the most part, doesn't tell states what to do" when voters' information doesn't match government databases, Wired reports. "In most states, voters who are labeled 'mismatches' or 'nonmatches' are still added to the registration list and can cast ballots. But this isn't the case everywhere."
Late last week, the Supreme Court sided with Ohio Secretary of State Jennifer Brunner in a dispute with the GOP over about 200,0000 of this year's 660,000 newly voter registered voters, according to the Associated Press Friday.
Evaluating what Brunner called an "illegal challenge on the part of the Republicans," the justices overruled a federal appeals court that ordered Brunner to "do more to help counties verify voter eligibility" by "providing local officials with names of newly registered voters whose driver's license numbers or Social Security numbers on voter registration forms don't match records in other government databases."
The justices would not comment on whether Ohio is complying with HAVA, but did grant Brunner's request "because it appears that the law does not allow private entities, like the Ohio GOP, to file suit to enforce the provision of the law at issue."
"Ohio Republicans contended the information for counties would help prevent fraud. Brunner said the GOP is trying to disenfranchise voters," the AP reported.
While the GOP claims that the mismatched voter registrations are subject to voter fraud, the Republican Party's court filings have "not produced any specific evidence of voting fraud, only unsubstantiated reports that voters from other states had cast fraudulent ballots during the early voting period," according to the AP.
"I think it's an unfair tactic to subject voters to this kind of uncertainty and anxiety this close to such an important election," said Brunner, who attributed the mismatches to "innocent clerical errors rather than fraud"
Still, the state Republican Party is prepared to use the unsubstantiated allegation of voter fraud as a protection against a close election (a "long term Republican strategy" cited last week by election law attorney, Rick Hasen in an NPR report): "If we have a close election in Ohio and there's any doubts, the failures will be laid right at [Brunner's] doorstep," said Ohio GOP Chairman Bob Bennett .
On Wednesday Brunner issued a directive advising counties that poll workers may not challenge voters at the polls on basis of database mismatches.
"Brunner said the mismatches were largely the result of clerical errors, misspellings and dropped middle names, and weren't any indication of potential fraud," according to the Associated Press. "She said federal law does not have any requirements for what to do with mismatches, and argued that the database was intended to eliminate duplicate registrations, not provide grounds to disqualify voters."
"Ohio boards of elections would have faced grave challenges to successfully administering orderly and fair elections had this court action been successful," said Brunner. "It is my hope that both parties will now come together to support Ohio's bipartisan election system and allow the preparation and training I have required of our state's election workers to proceed without further interference."
The Threat of Caging Voters
In August, the threat of disenfranchising 600,000 voters hung over Ohio thanks to a controversial 2005 law that overhauled the state's election system. The law, which coincidentally "sunsets" two months after Election Day, enables a practice called voter caging, wherein voters can be purged from the rolls if they have problems receiving notice of the purge in the mail. Because of their high mobility rates, the law was thought to disproportionately impact minority and young voters.
"In particular, the new law requires that 88 county boards of election mail every single registered voter in their purview a non-forwardable notice letter 60 days before the election," according to an August 13 Project Vote press release. "Each board must make a list of any bounced letters that are returned as undeliverable. These lists, in turn, are made available as public records to individuals and groups seeking to use the list as a caging list to challenge voters.
"The amended challenge law no longer requires the county boards to give all Ohio voters notice that their right to vote is being challenged or to permit a hearing for them to defend their right. Rather, the new election law permits the boards to review their own records and make a determination on the validity of the challenge."
This aspect of the law was examined by Project Vote and the Advancement Project, who urgedSecretary Brunner to ensure that every eligible voter can vote on Election Day and have their votes counted.
"Partisan, challengers who have obtained a list of returned letters shouldn't be allowed to strip Ohio voters of their right to update their addresses" said Teresa James, attorney with Project Vote.
"The lack of notice to challenged voters under Ohio’s 2006 challenge law allows this interference to take place quietly and behind closed doors," James said. "This violates the principles our nation was founded on."
In response to these concerns, Secretary Brunner issued a directive to all Ohio elections boards, making it clear that Ohio voters must be afforded notice and due process before their right to vote is challenged, and that returned mail alone can not be used as a partisan tool to suppress the vote, according to a Sept. 8 Project Vote news release.
The Threat of Challenging Voting Rights of Foreclosure Victims
In September, the Michigan Messenger exposed an alleged GOP plan in Macomb County, Mich. to challenge the vote eligibility of foreclosure victims, who, according to the report, are primarily low income "African-Americans who are overwhelmingly Democratic voters." The story garnered national attention – and outrage – leading to a lawsuitfrom the Obama campaign, denial of such plans from the state Republican Party, and even damage control in other states where challenging the voting rights of foreclosure victims was on the political menu.
In Ohio, Secretary Brunner took action to protect the rights of low-income voters. On Sept. 24, Brunner issued a directive to county boards of election stating that they "may not cancel any Ohioan's voter registration based solely on the fact that the person is involved in a foreclosure process." She instructed boards that they must comply with the National Voter Registration Act, which says a voter's registration can only be canceled due to residency if the voter confirms such a change in writing, or if the voter fails to respond to a forwardable notice and fails to vote in two subsequent federal elections.
New York Times reporter Ian Urbina wrote on the issue of updating voter registration addresses after moving "due to foreclosure or any other reason" and how this basic requirement, unbeknownst to many voters, may lead to the unintentional loss of thousands of votes. In September, Urbina reported 375,000 Ohio residents filed for a change of address with the U.S. Postal Service, but only 24,000 updated their voter registration information. Ohio officials sent notices to residents in select counties who have filed for change of address, but did not update voter registration, Urbina wrote.
Project Vote has sent letters to Secretaries of State in ten additional states urging them to follow Brunner’s example and take action to protect voters from challenges based on foreclosure listings.
The Battle Over Same Day Registration
Legislation passed by the Republican controlled state legislature in 2006 provides a five-day overlap between the first day to request an absentee ballot (Sept. 30) and the last day to register to vote (Oct. 6). Recognizing this, Brunner issued a directive to use this window of time to allow Ohio residents to register, request a ballot and cast that ballot all on the same day; a convenience that would "enable many young, minority, and low-income Ohioans to vote who otherwise would be shut out from voting," said Project Vote executive director, Michael Slater. The law was unsuccessfully challenged by Republican voters when a U.S. district judge in Cleveland and the Ohio Supreme Court ruled in favor of Same Day Registration.
The decision came after lawyers for Project Vote and other voting rights organizations coordinated efforts in a legal battle to protect Ohio’s five-day SDR period from the Republican lawsuits. Within hours of the court decision to uphold SDR, a case filed by the Ohio Republican Party to block SDR was declined by a U.S. district judge in Columbus, deferring to the decision by the Ohio Supreme Court earlier in the day.
Ohio is one of more than 30 states that allow voters to cast an early ballot. Eight states allow voters to register and vote on Election Day while North Carolina allows the practice during early voting.
Turnout has been 10 percent to 17 percent higher than the national average in the six states that had same-day registration and voting before 2006, as well as in North Dakota (which doesn't require voter registration), according to the National Conference of State Legislatures. Surprisingly, early voting turnout was reportedly low with just 4,000 voters registering and casting ballots in the five-day period, according to theAssociated Press.
Although Ohio courts sided with voters by permitting SDR, which ended on Oct. 6, the battle continues today.
Hamilton County special prosecutor Michael O'Neil is conducting a "troubling" grand jury investigation into hundreds of county voters who lawfully registered and cast absentee ballots during the five-day window of SDR.
"The renewed litigation prompted Gov. Ted Strickland (D) to say yesterday that Republicans 'have tried to instill fear in Ohio voters,'" the Washington Post reported Tuesday.
"We condemn these attacks which we find despicable. Ohioans deserve better than what they are getting from John McCain and the Republican Party," Strickland said at a press conference Monday, according to the Associated Press. U.S. Sen. Sherrod Brown added, "It's clear Republicans are using a systematic and coordinated effort of frivolous lawsuits and official government positions to scare Ohioans and suppress voters."
On Oct. 22, a coalition of voting and civil rights groups, including Project Vote, sent a letter to O'Neil, urging him to suspend the investigation that "would threaten the federally protected rights of Hamilton County voters under the Voting Rights Act of 1965 and the United States Constitution," according to a Project Vote news release.
Dismissing the investigation as reminiscent of a voter suppression and intimidation tactic last seen in the Deep South during the 1960s, Project Vote election counsel, Teresa James said "there has been no documented allegation that fraud occurred, let alone any credible evidence. This is an obvious overreaching of the authority of the prosecutor’s office, and a gross and egregious abuse of power."
In Other News:
Signature-Gatherer Arrested In Voter Fraud: Calif. GOP Contractor Accused In Registration Scam Charged With Falsely Registering Own Address – CBS News
The owner of a signature-gathering firm has been arrested on suspicion of voter registration fraud, authorities said Sunday.
NEW INFO: Voter ID Verification Lawsuit Dismissed – Associated Press
MADISON, Wis. (AP) -- A judge has thrown out Attorney General J.B. Van Hollen's lawsuit to force election officials to confirm thousands of voters' identities before Election Day.
'No match, no vote' law puts state, counties at odds – Palm Beach Post
TALLAHASSEE — Breaking with the state's top elections official, an attorney for the state supervisors of elections issued a memo Wednesday telling them to ignore Secretary of State Kurt Browning's instructions about how to handle new voters whose registration has not been verified.
EDITORIAL: Sorry, I Can’t Find Your Name – New York Times
Before Mississippi’s March presidential primary, one county election official improperly removed more than 8,000 voters from the eligible-voter rolls, including a Republican Congressional candidate. Fortunately, the secretary of state’s office learned of the purge in time and restored the voters.