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Ohio's Voting-Rights Ruling: What's the Upshot?

Initial reports seemed to suggest that last night's ruling by the U.S. 6th Circuit Court of Appeals on voter registration procedures in the critical swing state of Ohio could potentially disenfranchise hundreds of thousands of newly registered voters.

In truth, the story is more complicated than that. It's not clear how many, if any, voters will be dropped from the rolls as a result of the ruling, and the underlying legal dispute is not as cut and dry as in some of the other GOP-led voter suppression efforts we've covered.

We've seen a slew of voting-related litigation in states and counties across the nation. So it's worth taking a moment to understand how this latest development might affect voting in a state that John Kerry lost by around 118,000 votes in 2004 -- and what it says about the where the Republican's voter-suppression strategy is heading.

Ohio's Democratic Secretary of State, Jennifer Brunner, was being sued by the state Republican party, in what it says is an effort bring the state into compliance with the federal Help America Vote Act (HAVA) of 2002, and state election laws.

The entire 6th Circuit reversed a three-judge appeals panel and sided with the GOP. The court held that HAVA requires Brunner to provide county elections boards with the names of newly registered voters whose voter registration forms don't match DMV records.

Over 600,000 new voters have registered in Ohio this year. But it appears from the ruling that Brunner has already identified the mismatches from that group. The ruling notes that if the Secretary of State's office found a mismatch, it would send the county board of elections a letter saying that the voters' eligibility could not be confirmed. Then, "the Secretary required unconfirmed voter records to be updated and resent to the Secretary for another effort to validate them with the [Bureau of Motor Vehicle] records." But at a certain point, for reasons that are unclear, the communication between the Secretary of State's office and the county election officials appears to have ceased.

The court's decision will require Brunner to provide local elections officials with easily accessible county-by-county lists of mismatched voters for whom there were discrepancies between the information on their registration forms and other government documents.

The court didn't spell out what the counties must do with the information on mismatches. It's illegal for election officials to unilaterally remove voters from the rolls this close to an election, but voting-rights advocates fear that the information could allow some counties to mount challenges to voters whose records don't match up, even if the mismatch is the result of nothing more than a typographical error, and force them to cast a provisional ballot -- "disenfranchised by a typo," as Michael Waldman of the Brennan Center, a voting-rights activist group, puts it.

But it appears unlikely that large numbers of challenges will result from the ruling. The Ohio Secretary of State has the power to set a uniform standard for what counties should do when confronted with a mismatch, according to Carrie Davis, a lawyer with the ACLU. And Brunner -- like officials in 46 other states, say experts -- has consistently said that a simple mismatch is not grounds for knocking voters off the rolls.

Could some GOP county election officials try to ignore that directive, and impose a harsher standard? Possibly, but every challenge would be voted on by the board, made up of two Republicans and two Democrats. Brunner herself would cast the tie-breaking vote.

So at this point, it's far from clear how many eligible voters will be removed from the rolls thanks to the court's decision last night.

Part of the concern among voting-rights advocates has to do with the timing of the decision. They say that, with only three weeks until election day, there's little time for election officials to clear up the mismatches, creating potential confusion and delays on election day if, in the end, significant numbers of voters are challenged. In addition, the court makes clear that any voter registered in the last year -- over 600,000 -- must be verified.

By contrast, in Florida, where courts ruled earlier this year that a similar "no-match, no vote" standard can obtain, it applied only to voters registered in the last few months. And because the court made its ruling earlier in the cycle, there's been more time for election officials to sort out discrepancies.

Still, in a sense, this is really the result of an earlier legislative win for the GOP. Thanks largely to the efforts of congressional Republican "vote-fraud" hawks like Senators Mitch McConnell of Kentucky and Kit Bond, HAVA, the sweeping federal voting law enacted in the wake of the Florida 2000 fiasco, imposed a more restrictive standard in terms of verifying new voters' information. Arguing in the courts for that law to be strictly upheld is hardly an underhanded strategy, even if there are good arguments for a more liberal interpretation of the law.

So the GOP's voter suppression efforts have simply become more sophisticated. Instead of -- or really, in addition to -- ground-level efforts to use misinformation to intimidate and confuse voters at the polls -- they've gotten the courts to uphold a newly restrictive standard on verifying voters' eligibility.

Or, put more simply: Republican voter suppression has gone legit.


19 Comments

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I would like to know more about this - Are the unions, the NAACP, and the ACLU involved in voter protection issues in Ohio? Of these 600,000 newly registered voters, how many of them voted in the Ohio primary on March 4th? If the majority of the newly registered voters actually voted in the primary, shouldn't the discrepancies have been cleaned up by now if the Secreary of State, who is a Democrat, was doing her job and had the resources available.

This is very frightening. And, it is just the beginning of the dirty tricks the GOP is planning for the next three weeks.

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So what we do, is win this one and then concentrate on repealing all these anti-voter, anti-democracy, anti-American laws. And we need to frame it just that way. We need to take on the mantle of the true patriots.

I am sick and tired of the thugs stealing our country, wrapping their crimes in the flag, and calling it patriotic. It's time we recognized the true meaning of freedom, liberty, justice and the "American Way."

It's time we were truly patriotic.

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I agree - there must be massive election reform. I am no lawyer, but isn't there some sort of protection for voting rights implied in the Fourteenth Amendment, Section 1 - the equal protection clause:

"Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Sorry for the lack of formatting - I am too tired from phone-banking all day at my local Obama office. (Calling Ohio voters no less!)

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Actually, what we need (long term) is a right-to-vote amendment to the Constitution to create an *affirmative* right to vote in the Constitution. The enabling legislation would create clear, national standards to replace the inconsistent nonsense we have in thousands of jurisdictions today. The 14th Amendment was used by the Court to create the "one-person, one-vote" standard in apportionment in the 1960s, but for the most part, that and other amendments only prevent denying the right to vote based on a few criteria (race, gender, age). We do not have a federal, constitutionally guaranteed right to vote for president (or electors). It's all up to the states.

At the state level, ASAP, we need election day registration in every state. Eight have it, and turnout in 2004 was 12 percentage points higher in the EDR states than non-EDR states. No problems with so-called "fraud," either. People often get serious about the election in the final weeks; if they miss the deadline, they are disenfranchised. Ditto for the millions of people who move to a new address each year.

Most modern democracies have some kind of universal voter registration system. Fer chrissakes, you can drop a change of address card in the post to get your mail forwarded; your voter registration should move with you just as easily.

In Ohio, right now, D's need to highlight that HAVA specifically disallows purging voters solely based on database mismatches, as those federal databases can be crap. The SSI database is notably bad for non-retirees. Slow to be updated, etc.

Man, don't get me started...

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A check box on the change of address card would be enough. This is not rocket science. Most people have an address.

You need the check box to handle students, military personnel, etc. Even then, though, that should be enough to get voter information directed to the correct place.

What should be evident is that all the complications are designed to prevent voting.

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Yes, all this is absolutely true: we need a right to vote (including currently disenfranchised felons and ex-felons), same day registration, and more: election by popular vote, in other words a sudden and decisive end to the Electoral College system (yesterday); some sort of "Preferential" or "Instant Runoff Voting"; and still more.

But there isn't a voting reform in the world that will fix our biggest problem. Someone once said, We don't need voter registration, we need candidate registration. But why are our candidates so bad? We blame the media, the big-money primaries, the two-party lockdown, and all those are factors. But the one thing we can do differently, all of us can do it, and do it now, is organize - get together with other people, face to face, and demand better. Better healthcare (universal), better wages (and job protections, unions), better education (smaller class sizes, not funded by property taxes, etc), better & saner & more humanitarian foreign policy that doesn't turn the whole world against us, and so on.

We may think we're doing that, but putting a sign in your front yard or a bumpersticker on your car, ain't it. If we want it, we have to make it happen, and stop waiting for rich politicians to do it for us.

We can start our own groups, but there are already groups in every community - unions and others - where we can start.

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I wonder if there is simple countermeasure.

While there is certainly a more fundamental issue regarding blatant attempts at vote suppression, an immediate, actionable procedure for validating new registrations might look like this: Send a postcard or letter to newly registered voters with the instructions "Do Not Forward" and requesting return to sender if undeliverable. The postal service would sort most of this out in a couple of days. Having the card or letter in hand would demonstrate something concrete about your residency.

It's not perfect but it is likely to ensure that many voters would stay on the roles or create a case for counting their vote if they were forced to cast a provisional ballot.

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In other words, an official caging operation.

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Ohio basically had one. The state sends out a no-forward "notice of elections" 60 days before polling. Returned notices are available as public record - it saved the Republican Party quite a few stamps when they didn't even have to sent the cage mail themselves and were able to use one piece of returned mail to throw voters off of rolls without notice or any ability to challenge.

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compulsory registration and attendance at the polling booth is the easy answer.

saves a lot of bullshit

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The "do not forward" letters may disenfranchise people in the military, students away at college, and people who have moved recently or had their homes foreclosed.
Spread the word, and carry this information with you when you go to vote; if voter fraud or vote suppression is suspected:
call the Election Protection Hotline
at 866-OUR-VOTE (1-866-687-8683)
Their Web site is
www.866ourvote.org

You might also want to read this article on protecting voter’s rights:
http://www.prospect.org/cs/articles?article=protecting_voter_rights

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Not to mention people who forget to send the cards in - when we get home with our kids and get the mail stuff gets strewn about and sometimes very important mail gets misplaced.

Personally, I like the idea of a tax credit for voting, to be a part of a refund if you don't owe any taxes (a negative tax credit?).

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Here are two thoughts. First, with the possibly of a decisive win for Obama, I'm concerned that election fraud will get ignored, just like much of it got ignored in 2006 because the Democrats appeared not to be harmed (unless someone actually, say, looked).

Second, let's use the republican concerns about voter fraud and voter registration fraud to push for serious reform of voter registration, such as an automatic registration form tax records like Canada does. Since Republicans are so anxious to rely on other lists, how do they argue against it?

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I have written a few posts, and an email or two to Josh
stating that Obama could have run on this issue ALONE in the last few months.

He still can for the last 3 weeks

It has nothing but upside.

Obama could be educating voters at the same time he is exposing the RightWing's totalitarian and anti-american practices. What could be more pertinent, than having someone powerful advocating for average voters. If they saw Obama out there fighting for their right to vote, wouldn't that inspire a lot more people to USE it, and get out there and vote?

This could really be turned against the ReFoolAgains. No matter how sleazy the ReFoolAgin ads are, no matter how LOW their other tactics....nothing would resonate more with the avg. voter than getting apeek at what the ReFoolAgins are up to. Also, we have had 8 years of blatant voter suppression, with Van Spakovsky and Schlotzman and whole segments of our govt. targeting poor folks and avg folks and old folks and young folks and minorities trying to strip away their ability to vote.
We hardly would need any other plank in our platform. I believe we could have run on this ALONE and at the same time exposing the ReFools for the Stalinists they are. It would have raised Civic Pride, would have made the avg voter much more determined, and would have put the ReFools on the defensive. Not only that, it would have exposed their whole machine, the depth and depravity to which they have sunk. Like in Montana...the ReFools there ended up with BIG EGG on their faces and their top member had to resign the other day, cuz they got caught trying to disenfranchise every voter out there who weren't fairly well-off whites.

Anyone disagree? I think there is still time.

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I'm working voter protection in Ohio. The Ohio Democratic Party has full time staff coordinating with the Obama Voter Protection team to ensure that the best interests of voters are being served. We are utilizing trained attorneys and law students from around the state to act as both poll workers and election observers. In-state attorneys will be allowed within precincts in targeted counties. Out of state attorneys have also been recruited, although they will work outside of precincts.

The Green Party, who was responsible for contesting the Ohio '04 (and before any Dems gets angry their candidate Cobb received only 192 votes in '04) and raising the funds for the recount, is also actively recruiting observers.

Mr. Roth, I would like to suggest footnotes be applied whenever the statement that Bush won Ohio by 118,000 votes is used. I would suggest that John Conyers and the House Judiciary Legal Staff's "Preserving Democracy: What Went Wrong in Ohio" is referenced. This reports states (among many other facts):

"The misallocation of voting machines led to unprecedented long lines that disenfranchised scores, if not hundreds of thousands, of predominantly minority and Democratic voters. This was illustrated by the fact that the Washington Post reported that in Franklin County, "27 of the 30 wards with the most machines per registered voter showed majorities for Bush. At the other end of the spectrum, six of the seven wards with the fewest machines delivered large margins for Kerry." (See Powell and Slevin, supra). Among other things, the conscious failure to provide sufficient voting machinery violates the Ohio Revised Code which requires the Boards of Elections to "provide adequate facilities at each polling place for conducting the election."

Mr. Blackwell's decision to restrict provisional ballots resulted in the disenfranchisement of tens, if not hundreds, of thousands of voters, again predominantly minority and Democratic voters. Mr. Blackwell's decision departed from past Ohio law on provisional ballots, and there is no evidence that a broader construction would have led to any significant disruption at the polling places, and did not do so in other states.

Mr. Blackwell's widely reviled decision to reject voter registration applications based on paper weight may have resulted in thousands of new voters not being registered in time for the 2004 election.

The Ohio Republican Party's decision to engage in preelection "caging" tactics, selectively targeting 35,000 predominantly minority voters for intimidation had a negative impact on voter turnout. The Third Circuit found these activities to be illegal and in direct violation of consent decrees barring the Republican Party from targeting minority voters for poll challenges.
The Ohio Republican Party's decision to utilize thousands of partisan challengers concentrated in minority and Democratic areas likely disenfranchised tens of thousands of legal voters, who were not only intimidated, but became discouraged by the long lines. Shockingly, these disruptions were publicly predicted and acknowledged by Republican officials: Mark Weaver, a lawyer for the Ohio Republican Party, admitted the challenges "can't help but create chaos, longer lines and frustration."
Mr. Blackwell's decision to prevent voters who requested absentee ballots but did not receive them on a timely basis from being able to receive provisional ballots 6 likely disenfranchised thousands, if not tens of thousands, of voters, particularly seniors. A federal court found Mr. Blackwell's order to be illegal and in violation of HAVA."

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Why might a newly registered voter's name not match her DMV record? She might have omitted a hyphen between her two last names on the voter registration, or she might have used a nickname on the DMV ID but not the voter registration. Or she might have used a maiden name on the official ID, and her married name on the registration. Or, after a divorce, she may have resumed her maiden name. See all the innocuous reasons why there might be a disparity? In light of such inconsistencies, will election officials accept her innocent explanations, or will they, prodded by private GOP vigilante-challengers, refuse to allow her to vote? By the way, many men have nicknames, too. Should they all be disenfranchised?

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I've noted several times that these "mismatches" could be a particularly big problem for ethnic groups whose naming practices aren't a good "fit" with American forms.

How many different ways can a data-entry clerk mess up the name "Juan Jesus Maria Valdez y Garcia"? And will those folks be able to figure out that Mei Ling Chu is also Chu Mei Ling?

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I wonder, is this designed to create the kind of conditions of mass suspicion and disatisfaction which might lead to unrest on Election Day or thereabouts? All of this could have been done last year, or earlier this year if there was any substance.

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Could be a way to gin up the base who seem pretty discouraged and may not show up on election day.

Or typical GOP voter suppression to keep the "wrong sort" from voting.

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