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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Thursday, September 1
DOJ "Clarifies" Position on ID & Provisionals
The U.S. Department of Justice today issued this letter to Arizona's Secretary of State Jan Brewer, regarding provisional ballots for voters who lack identification. The letter explains the Help America Vote Act's requirements regarding the casting and counting of provisional ballots. Although the letter's stated purpose is "to clarify" the Department's position, in reality this letter retracts the position that Justice Department took in an April 15, 2005 letter to Secretary Brewer, which I discussed in this post ("Not Your Father's Justice Department").

A bit of background may be helpful. The correpondence concerns the State of Arizona's implementation of Proposition 200, which includes identification requirements for voters that are stricter than those applicable under HAVA. On April 5, 2005, Secretary of State Brewer wrote to request advice on how HAVA's requirements should be interpreted. In its April 15 response, the Justice Department opined -- quite clearly in error -- that states could deny provisional ballots to voters lacking ID, without running afoul of HAVA.

Today's letter makes clear that the DOJ's April 15 opinion letter was incorrect, and that voters are entitled to receive and to cast a provisional ballot, even if they lack ID. The new letter states that "HAVA requires State to allow voters who meet certain specified conditions the opportunity to cast a provisional ballot." Specifically, voters who execute a written affirmation that they are registered and eligible to vote are entitled to cast a provisional ballot.

What this means in practical terms for the State of Arizona is that its proposed plan for implementing Proposition 200, under which provisional ballots would not be issued to voters lacking ID, does not comply with HAVA. As I discussed here, here, and here -- and as even the Justice Department now concedes -- it violates HAVA to deny those voters a provisional ballot. (Tova Wang has more on the Arizona law in this commentary.)

While DOJ deserves some credit for correcting itself, its latest letter still falls short in one significant respect. In particular, the letter suggests that states may do indirectly what HAVA plainly prohibits them from doing directly. DOJ accurately states that HAVA draws a distinction between who must be allowed to cast a provisional ballot and which provisional ballots should be counted. And they're certainly correct that HAVA gives states more latitude when it comes to counting than it does with distributing provisional ballots. In particular, HAVA provides that the determination of which provisional ballots to count should be made in accordance with state law on who is "eligible."

Where DOJ goes wrong, in my opinion, is in suggesting that the state's vote-counting discretion is unlimited. For example, DOJ says that "if an individual who casts a provisional ballot does not comply with a State's identification requirement, the State is under no obligation to count the ballot." The implication is that the state could adopt a rule that it will not count any provisional ballots cast by those who come to the polls without ID. In other words, you have a right to cast a provisional ballot but it's an empty right because it won't be counted . . . "Gotcha!" The only cases that DOJ cites for this proposition are ones from Ohio, Florida, and Missouri, which address whether provisional ballots must be counted if cast in the "wrong precinct." This is obviously a different issue from whether a state may reject all the provisional ballots of those who lack ID.

On this point, it's important to pay special attention to a section of HAVA that DOJ's latest letter buries in a footnote (#1). Its section entitled "fail safe voting" specifically provides that those voters who appear at the polls without the identification required by HAVA must be allowed to cast a provisional ballot. 42 USC 15483(b)(2)(B). Congress couldn't have meant to require that states provide all those voters with provisional ballots, while at the same time allowing states to count none of their ballots. To do so would be truly perverse -- the equivalent of giving voters dummy ballots that have no chance of being counted. And if this is true for those voters who don't meet HAVA's relatively lenient ID requirements, it should be doubly true for voters who are subjected to more stringent ID laws passed by the states.

What states can do is to enact rules that will provide a reasonable means of establishing whether the voter who comes to the polls without required ID is in fact "eligible." One way of doing this is the means upon which the State of Ohio settled in the past election. Voters subject to HAVA's ID requirement who came to the polls without ID were allowed to orally provide their driver's license number or the last four digits of their social security number, either when they vote or by the time the polls closed. The provisional ballots were then to be counted if that information was subsequently verified. With the statewide registration databases that must be in place by 2006, it should be a relatively easy matter to ascertain whether that information "matches" what's in the state's system, and to count those provisional ballots.

Bottom line: It's a very good news that DOJ has corrected the erroneous interpretation of HAVA that it offered back in April. This means that the State of Arizona will have to retool its plan for implementing Proposition 200 . . . and may well call into question whether that proposition violates federal law on its face. On the other hand, to the extent that DOJ's latest letter means to suggest that states may discard all the provisional ballots of those who come to the polls without ID, it's still not offering a reading of the statute that's consistent with HAVA's "fail-safe voting" procedure.

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