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Election Law @ Moritz

Election Law @ Moritz

Information & Analysis

October, 2008

Below are postings from October, 2008. (See Archives | Recent Headlines)

Thousands of CO Absentees Could Have ID Problems

Oct. 31 - The Denver Post reports that Colorado election officials are warning that approximately 35,000 first-time mail-in registrants who have requested absentee ballots were not matched in the state's voter registration database and therefore need to send in a photocopy of ID with their mail-in ballots.  However, there seems to be confusion amongst voters as to this requirement, and many of them may not be sending in the appropriate ID.  Administrators have indicated they will treat these ballots as provisional ballots.

New Mexico Supreme Court Upholds State Law

Oct. 31 - The New Mexico Supreme Court yesterday (10/30) upheld a state law that says that a vote must be counted if election judges can unaminously agree upon the voters intent.  The Court ordered the Secretary of State Mary Herrera to develop guidelines to assist election judges in deciding whether votes should be counted.  [Read the Order].  See EL@M case page for additional information and case documents.

Litigation Status Report

Oct. 31 - Overview-- Despite the flurry of election litigation activity that has been occurring in the last two to three weeks, today (Friday, October 31) things are actually pretty quiet on the litigation front. This has happened for two reasons. First, activists and political parties have dropped, settled, or put off until a later time important suits in states like Colorado (voter purges), Michigan (polling place challenges), Ohio (suits over ID and challenges to absentee ballots), and Virginia (general election day preparedness). Second, courts have moved with great speed to decide the remaining disputes that have not gone away on their own: Pennsylvania (a suit against ACORN and one demanding additional paper emergency ballots), Ohio (a suit about both HAVA matching and a disputed 5-day window in which voters could both register and vote in one trip), Wisconsin (a suit about matching, although an appeal is expected), and Georgia (matching). The few suits that are still outstanding, or have been resolved extremely recently, are digested in this article. . . .

Absentee ballots emerging as a trouble area nationwide

Oct. 31 - class="MsoNormal">It is becoming clear that the verification and counting of absentee ballots are emerging as top issues in this year’s historic election.  Absentee ballots are being used more this year because several states began allowing “no-fault” absentee voting, meaning any voter can vote early in-person or by mail without an excuse.  High interest in this presidential election and fear among voters of the long lines they saw in 2004 have also contributed to the vastly expanded use of absentee ballots.

As we enter the final weekend before the election, here are some of the reported problems we are seeing with absentee ballots...

Virginia suit over polling places is renewed

Oct. 31 - The AP is reporting that the NAACP is renewing its request for a federal court order concerning the state's preparations to handle the large turnout expected on Tuesday.  Apparently, after reviewing new information supplied by the state concerning the allocation of polling place resources, the plaintiffs consider it inadequate and have requested a hearing on Monday.  (Case page.)

Indiana judge requires set aside of challenged absentee & early ballots

Oct. 31 - The Indy Star is reporting that a state judge in Marion County, where Indianapolis is, has agreed with the Republican request that challenged absentee and early ballots be set aside for later review, rather than on-the-spot determinations by precinct officials.  (Case page.)

McCain v. Obama: What's Next?

Oct. 30 - Ned Foley’s McCain v. Obama simulation has now yielded an opinion that Foley rightly describes as “thoughtful and rigorous”—one worthy of careful consideration by real courts deciding real cases on analogous facts. This Comment briefly addresses the most significant features of the opinion’s legal reasoning, and then turns to the question of what we may learn from the simulationabout specialized, bipartisan election tribunals.

Post-Election Contests: Four States to Watch

Oct. 30 - Recently, friends of mine have been speculating about whether there might be a legal contest to the November 4 presidential election like the litigation that happened in 2000. To me this type of contest seems exceedingly unlikely because, if actual voting even somewhat mirrors the most recent polls, any legal victory in any particular state would be only symbolic and would not change the result of the election. Furthermore, the idea of a series of election contests being brought across the country to change the balance in the electoral college seems facially absurd. Instead, the real legal story that comes out of this presidential year, if a coherent story comes out at all, is likely to center around a series of important, though lower profile, contests for governor, US Senate, or House of Representatives. Here are four states to watch.

Settlement Reached in CO Purging Case

Oct. 30 - The Denver Post reports that Colorado has reached a settlement with Common Cause and other organizations in the recent VRDB purge case.  While the purged voters will still have to cast a provisional ballot, those ballots will be specially flagged and examined first, before all other provisional ballots.  Furthermore, the ballots will enjoy a presumption of validity, and may only be discounted by clear and convincing evidence of ineligibility.  See Major Pending Cases case page here, Lawsuit Tracker page here.

Van Hollen Plans to Deploy Observers in WI

Oct. 30 - Wisconsin Attorney General J.B. Van Hollen will deploy around 50 assistant attorneys general to polling places on November 4, presumably to see whether actual polling place operations conform to Van Hollen's understanding of the law.  Van Hollen recently lost a lawsuit that he had brought against Wisconsin's chief election official to force the state to go back and perform database matches on the registrations of voters who had registered before Wisconsin's facility for performing these kinds of checks had been set up.

Hot Gubernatorial Races

Oct. 30 - Moritz associate Scott Woodling has produced this helpful chart.  The closest races are in North Carolina and Washington state.

6th Circuit Rejects MI Purges

Oct. 30 - The federal 6th Circuit Court of Appeals has denied Michigan election officials stay of a lower court injunction that required officials to undo purges they had performed on the voter registration database.  Among other things, the opinion holds that any voter listed in the VRDB as "active" is considered a "registrant" for purposes of the federal NVRA, and therefore comes under the protections of that statute.  See Major Pending Cases case page, Lawsuit Tracker page.

Ohio Does Not Have Technology to Match Voters

Oct. 30 - The Ohio Secretary of State has announced that Ohio's statewide voter registration database, for practical purposes, is currently incapable of performing HAVA comparisons of the information on incoming voter registration applications against other government databases.  While previously fighting GOP efforts to use this database function to investigate alleged fraud, Brunner appeared to believe the database was capable of performing such comparisons.

NAACP Drops VA "Preparedness" Lawsuit

Oct. 30 - The NAACP and other groups have decided not to seek a pre-election hearing in their suit claiming that Virginia officials are not prepared for the record turnout expected on November 4.  The suit asked the courts to order more voting machines, keep polls open an extra two hours, and order the use of paper ballots in certain cases.  See Major Pending Cases case page here, Lawsuit Tracker page here.

New Indiana Suit re: Absentee Ballots

Oct. 30 - The Republican Party organization of Marion County, Indiana (where Indianapolis is located), has sued the county election board claiming that the board has ordered poll workers to count absentee ballots and commingle them with other ballots before parties have the opportunity to challenge the eligibility for counting of those ballots.

PA Judge Says ACORN Need Not Disclose Info

Oct. 30 - A Pennsylvania state court judge has ruled that ACORN does not have to disclose to the state Republican Party a list of voters whom it has registered (see this story).  See Major Pending Cases case page here, Lawsuit Tracker page here.

FL Dems Sue to Prevent Challenges

Oct. 30 - Florida Democrats have sued for an injunction preventing Republicans from executing alleged plans to initiate mass challenges against voters at the polls.  The Dems claim that Republicans are going to target voters whose homes have been foreclosed upon and voters from whose addresses mailings have been returned undeliverable.  Moritz is obtaining documents.  [Read Complaint].  See EL@M case page for more information and case documents.

Florida election supervisors considering lawsuit over governor's order to extend early voting hours

Oct. 29 - Elections supervisors are considering filing for an injunction over the governor's order to extend early voting hours citing overworked employees as one reason they will have trouble complying.  See the Orlando Sentinel's coverage here.  Florida is one of the states that has an election-specific emergency provision granting the governor certain powers in election emergencies.  FSA 101.733.  While the governor did speak in terms of emergency in his order, the statute appears at first glance to apply to emergency conditions such as hurricanes and natural disasters.  However, the language may be interpreted to cover an "accidental" situation caused by "human beings".  It is unclear from news accounts under what authority the governor was acting and whether this statute is relevant to the analysis.  Election Law @ Moritz covered this and many other election law questions for 17 states in its Key Questions for Key States (KQKS) research project.  See the Florida analysis here.  Click here for the KQKS home page.

The Ohio Ballot Experiment of 2008

Oct. 29 - In preparation for this year’s election, I have been working with Larry Norden and Margaret Chen of the Brennan Center, and Whitney Quesenbery of the Usability Professional Association to focus more attention on improving ballot design, to reduce voting errors and minimize the number of disputed ballots in post-election recounts. Our report, Better Ballots, summarizes research on ballot design and identifies several confusing ballot features that should be avoided. One of the main recommendations in the report is to list candidates for the same office in a single column on a single ballot page or screen. Some voters see the second column as another contest and mistakenly make a selection from both columns, thus overvoting the ballot.

6th Circuit: NVRA

Oct. 29 - The federal 6th Circuit appellate court has ruled that both Ohio Secretary of State Jennifer Brunner and the director of Ohio's Department of Job and Family Services are proper defendants in a suit claiming that Ohio has violated the NVRA by failing to make voter registration forms sufficiently available at public assistance agencies.  See case page here.

Moritz Presents New Research on Poll Hours Extension

Oct. 29 - Moritz researchers Nathan Cemenska, Sarah Cherry and Caryn Kaufman have produced this interactive map that shows the law (or absence of it) in 29 states on the subject of extending polling hours due to emergency, high turnout, or other reason.  Click here for 44 other maps and more information.

Indiana court refuses to stay early voting - hearing scheduled for tomorrow

Oct. 29 - The Indiana Court of Appeals has denied an immediate stay of early voting in Lake County satellite offices and has scheduled a hearing for tomorrow.  Marcia Oddi of Indiana Law Blog has the update here.  [Read the Order].  See the EL@M case page for more information and case documents. 

OSU Study Finds Many Franklin County Polls Inaccessible

Oct. 29 - Occupational therapists at Ohio State University, cooperating with the Ohio SoS and the Franklin County BOE, conducted a study that found many Franklin polling places are not compliant with HAVA's disability access provisions.  Problem areas included not having special parking spaces and not having fully accessible entrances.  The full published report is in production now.

Helpful Chart of Voter Registration/ID Laws

Oct. 29 - OSU Law student Damoun Delaviz has produced this useful chart of voter registration cutoffs, registration database types, voter ID, and NVRA compliance.  The chart was produced this summer and should be mostly up to date.

IL Registration Fraud Suit May Go to Federal Court

Oct. 29 - The Lake County judge responsible for hearing the Illinois "registration fraud" case will allow a federal court to decide whether it will remove the case from state court.  The suit was filed by the Illinois GOP amongst claims that a third-party voter registration group had submitted a number of fraudulent registration forms.  Among other things, the suit asks for the ballots cast by the affected voters to be treated provisionally, so that it can be decided at a later time whether to count them.

OH Matching Controversy: DOJ Will Not Get Involved

Oct. 29 - The New York Times reports that the US Department of Justice has declined a request by President Bush and others to investigate the registrations of voters whose records could not be verified using HAVA database matches.

Court: PA Must Provide Paper Ballots

Oct. 29 - A Federal trial court has granted the Pennsylvania NAACP's request to require provision of paper ballots in precincts where 50% or more of the voting machines are malfunctioning.  The prior practice required such ballots only when 100% of machines were malfunctioning.  See Major Pending Cases case page here.  Secretary of the Commonwealth Cortes will not appeal the court's decision.

PA Voters May Wear Political T-Shirts

Oct. 29 - A Pennsylvania state court judge has declined a GOP request to prohibit voters from wearing political t-shirts, campaign buttons and other political insignia in the polling place.

NM GOP Sued over Investigating Voters

Oct. 28 - The New Mexico ACLU has sued key Republican leaders in the state for allegedly using social voters' social security numbers to investigate their eligibility to vote (complaint).  Among other things, the suit claims that the Republicans violated state privacy laws by disseminating copies of 7 voter registration forms with unredacted dates of birth.  See EL@M case page for more information and case documents.

NAACP files suit in Virginia

Oct. 28 - The Virginia NAACP filed suit yesterday (10/27) in federal district court against Virginia Governer Tim Kaine.  The suit alleges that the state has not provided enough resources to accomodate an expected record turnout in next week's presidential election.  The suit asks the court to require the state to move voting machines to locations likely to have long lines, keep polls open an extra two hours, and to use paper ballots in certain cases. [Read the Complaint]  See the EL@M case page for more information and case documents.   

30 Florida counties come up with new ways to deal with the state's

Oct. 28 - Some Florida counties are making it easier for voters whose names or other data do not match exactly with BMV or SSA records to vote without in one trip.  Broward County plans to allow these flagged voters to bring copies of ID to the polls to include with their provisional ballots rather than having to make a return trip to provide the same ID within 48 hours after election day.  Miami-Dade County is also allowing the flagged voters to bring ID to the polls to clear up their status and, these voters will be allowed to cast a regular ballot. 

FL Governor extends early voting hours

Oct. 28 - Florida early voting has seen some problems as a result of the huge turnout.  Governor Charlie Crist has issued an executive order requring early voting hours to be extended.  Election Law @ Moritz has researched what powers the governor or election officials have in the face of unforeseen election problems and had difficulty in most states finding definitive answers.  This step by the governor shows an awareness and willingness to take action when voters are suffering unnecessary inconvenience through no fault of their own. 

OH Court Resolves Lingering Provisional Issues

Oct. 28 - The US District Court for the Southern District of Ohio has ordered that Ohio provisional ballots shall not be rejected merely because poll workers failed to execute their part of the accompanying paperwork properly.  However, the order does not detail what to do if voters, due to poor instructions from poll workers or other reasons, themselves fail to execute their part of the paperwork properly.  The order also states that addresses that do not correspond to any building shall be considered acceptable addresses for purposes of voting so long as the voter intends to return to that address.  See Major Pending Cases case page, Lawsuit Tracker page.

Illinois Republican Party sues Lake County clerk over voter registrations

Oct. 28 - Illinois Republicans filed a lawsuit today seeking an order requiring the Lake County clerk to identify voter registrations turned in by Citizen Action/Illinois claiming that many of these registrations are "fraudulent, incomplete, or illegitimate."  (Note: This suit if not to be confused with an ongoing lawsuit in Lake County, Indiana in which Republican county board members seek to close early voting sites.)

ACORN plans to file lawsuits tomorrow against voter suppression

Oct. 28 - ACORN announced today that it will be filing lawsuits tomorrow over voter suppression activities.  ACORN has been in the news frequently in recent weeks over allegations that some of the voter registrations turned in by their employees were fakes or duplicates. 

Injunction Issues in Georgia Matching Case

Oct. 27 - A federal court in Georgia on the grounds of failure to obtain VRA preclearance has issued a preliminary injunction against a state database matching program that has flagged some registrants as ineligible to vote due to lack of citizenship.  The injunction requires officials to permit these voters to cast a challenged ballot, and requires officials to notify them of what they must do to ensure the ballot counts (e.g., bring proof of citizenship to the county registration office).  The injunction states that it goes into effect immediately and will remain in effect unless or until preclearance is obtained.  A related news story can be found here.  The case page can be found here.

Court Resolves Ohio Provisional Balloting Issues

Oct. 27 - The Southern District of Ohio has issued this order adopting an Ohio Secretary of State directive instructing local officials on the rules for counting provisional ballots.  However, a few issues in the case remain, including how to treat ballots cast by individuals with no permanent address.  See Major Pending Cases case page here, Lawsuit Tracker page here.

Colorado Sued over Purges

Oct. 26 - Common Cause has filed a complaint against Colorado Secretary of State Mike Coffman alleging that the state has executed illegal purges of the statewide voter registration database.  Specifically, the complaint alleges that Colorado violated the NVRA by purging the voting rolls within 90 days of an election for unauthorized reasons, including the failure of post-registration address confirmation postcards to reach new registrants.  See Major Pending Cases case page here, Lawsuit Tracker page here.

Indiana SCt Hears Early Voting Case

Oct. 24 - Indiana Republicans have appealed to the Indiana Supreme Court the decision of a lower court to permit early voting to continue in satellite offices in three northwest Indiana municipalities.  The Republicans claim that the satellite offices were not properly authorized because they were not supported by unanimous vote of the local election boards.  See Major Pending Cases case page here and Lawsuit Tracker page here.

Trouble Brewing over MI Absentee Ballots

Oct. 24 - A Republican state Senator has charged that Michigan election officials have broken the law by deputizing one another to accept in-person absentee balloting requests.  Michigan law apparently requires first-time voters who registered by mail to request these ballots in-person, but local election officials designed a program to deputize one another and thereby permit voters to make this request in jurisdictions other than the jurisdiction of registration.

Indiana SCt Declines to Hear Early Voting Case

Oct. 24 - The Indiana Supreme Court has apparently declined to hear a suit seeking to end early voting in satellite polling locations in three northwest Indiana municipalities.  Moritz is obtaining documents.  See Major Pending Cases case page, Lawsuit Tracker page.

Motion for expedited discovery denied in Pennsylvania Republican Party suit

Oct. 24 - The Pennsylvania Republican Party has not made very speedy progress so far in its suit against ACORN and was today (10/24) denied a motion for expedited discovery by the Commonwealth Court.  One report claims a new witness's testimony will be presented in the case.  The witness once worked for ACORN and will reportedly testify that the group did minimal verification of the registrations they collected.  The documents for this case do not appear to be readily available.  The docket sheet was all that could be found and is linked above. 

Ohio SoS Issues Provisional Ballot Guidelines

Oct. 24 - As "a means to settle" Ohio's ongoing voter ID/provisional ballot litigation (NEOCH v. Blackwell), the Ohio SoS has issued this directive.  The policy continues to require presentation of hard copy ID, SSN-4, or driver's license/state ID # for provisional ballots to count.  (See also this brief news report.)

Texas Democrats Appeal to U.S. Supreme Court

Oct. 23 - The Texas Democratic Party filed a Petition for a Writ of Certiori with the U.S. Supreme Court on Tuesday (10/21) in Texas Democratic Party v. Williams.  The case involves the certification and use of electronic voting machines that are alleged to undercount submitted votes.  This case will not impact this year's presidential election, but could set an important precedent for the future if taken by the high court.  (See EL@M case page for more information and case documents).

PA Voters Sue for Emergency Paper Ballots

Oct. 23 - The Pennsylvania NAACP and other groups have sued the state's Secretary of the Commonwealth to force him to require paper ballots in polling places when 50% or more of the voting machines in those polling places have broken down [Read the Complaint].  For information on how Pennsylvania and 16 other states currently treat the issue of touchscreen breakdown, Key Questions for Key States:  What if touchscreens break down?  (See the EL@M case page and Lawsuit Tracker page for more information and case documents). 

WI Judge Dismisses Matching Lawsuit

Oct. 23 - A Wisconsin state trial judge has dismissed Van Hollen v. Government Accountability Board, a suit brought by the state's own attorney general to try to force administrators to go back and perform HAVA database matches on voters who had registered prior to the time the state's infrastructure for performing this type of match had been set up.  Van Hollen has indicated he will appeal. 

Update:  Order and Hearing Transcript now available.  (See EL@M case page for more information and case documents).

Ohio SoS Prohibits Challenges Based on Mismatches

Oct. 23 - The Ohio SoS has issued this two directives prohibiting polling place challenges and challenges to absentee ballots based "solely" on evidence of a HAVA mismatch.  However, the directives do not appear to prohibit challenges that are only partially based on evidence of such mismatches.

Colorado Secretary of State at odds with county officials over checkbox

Oct. 22 - Colorado Secretary of State, Mike Coffman, has directed counties to force voters who did not check a box on their registration form indicating that they have no drivers' license or state ID number to vote on provisional ballots.  Jefferson County officials plan to let voters cast regular ballots and, instead, will ask voters for additional ID to resolve the matter.  See report here.  The report indicates that voters must return to the county election offices with additional documentation to have a provisional ballot counted.  While researching Colorado election law, EL@M was told by a local elections official that Colorado officials do indeed require provisional voters to return with acceptable ID.  However, Colorado law states that provisional ballots will be counted if the voter was registered and eligible to vote. CRSA 1-8.5-106. To make this determination, officials are to look at records of convicted felons, state voter registration databases, and the state department of motor vehicles database. 8 CO ADC 1505-1-26.4.4. No mention is made of having to return with ID.  EL@M is watching this situation for further developments.

Michigan Foreclosure Suit Settled

Oct. 21 - The Michigan foreclosure lawsuit has been voluntarily dismissed, with prejudice.  There had been rumors that Michigan Republicans intended to go to the polls and challenge voters whose addresses corresponded to homes in foreclosure, but both parties now appear to agree that that is not a sufficient basis for challenge.  See Major Pending Cases case page, Lawsuit Tracker page.

Ohio Matching Suit Dismissed

Oct. 21 - The plaintiff in Myhal v. Brunner, the mandamus action before the Ohio Supreme Court that asked the court to force Ohio's Secretary of State to order counties to check absentee voters' records for non-matches and perform unspecified processing on those that didn't match, has voluntarily dismissed the case, without prejudice.  See Major Pending Cases case page, Lawsuit Tracker page.

Two Ohio Supreme Court justices recuse themselves and other developments in the Myhal/Mahal case

Oct. 20 - Justices Stratton and O'Connor recused themselves from the case of State ex rel. Mahal v. Brunner.  The justices also recused themselves when the court heard State ex rel Colvin v. Brunner last month in which the court allowed same-day registration and voting to go forward during the 5-day overlap window. Judge William H. Wolff Jr., of the Second Appellate District, sat for Justice Lundberg Stratton and Justice Lynn C. Slaby, of the Ninth Appellate District, sat for Justice O’Connor.  Jugde Wolff was the only Democrat on the court for that decision (see news story on the case) and he was one of the 4 judges who sided with Brunner in the 4-3 decision. 

Secretary of State Jennifer Brunner has removed the case to U.S. District Court in Columbus, on the grounds that the complaint against Brunner arises under federal law, namely the Help American Vote Act.  Additionally, the Ohio Supreme Court shortened the timeframe for the case, saying it wants Brunner's response to the case today and all briefs and evidence from both parties by 10 a.m. Wednesday, rather than Friday.

Federal judge remands Myhal/Mahal case to Ohio Supreme Court

Oct. 20 - Secretary Brunner removed the case to federal district court and Judge Smith sent the case back to the Ohio Supreme Court saying that petitioner's claim does not arise under federal law but rather seeks to enforce the state law that implements the federal law.  Plaintiff, David Myhal*, has campaigned for 4 of the justices in the past.  Justices Terrence O'Donnell and Robert Cupp have not recused themselves while Justices Lundberg Stratton and O'Connor have.  The remand order is posted on the case page.

*Note: The case name is Mahal though the proper spelling of Plaintiff's name is "Myhal".

Ohio SoS asks U.S. Supreme Court to void TRO

Oct. 17 - In Ohio Republican Party v. Brunner, the Secretary of State has asked the U.S. Supreme Court to overturn the en banc appeals court decision, which reinstated the district court’s order requiring her to supply county election boards with lists of “mismatches” from database-checking of voter registrations. The Secretary’s arguments are: (1) the Help America Vote Act’s database-checking rules create no “private right of action,” meaning that only the U.S. Department of Justice, and not individual citizens, may go to court to claim a violation of them; (2) the Republicans’ challenge to the Secretary’s procedures was raised for the first time too close to Election Day; and (3) efforts to comply with the district court’s order threaten “monumentual” disruption of the electoral process, with a deterrent effect on “legitimate” voters.  DISCLOSURE

U.S. Supreme Court Vacates Ohio TRO

Oct. 17 - In a recently released per curiam decision, the U.S. Supreme Court has vacated the TRO granted by U.S. District Court Judge George Smith and upheld by an en banc panel of the U.S. 6th Circuit Court of Appeals.  The Supreme Court determined that the plaintiffs in the action were not “sufficiently likely to prevail on the question whether Congress has authorized the District Court to enforce Section 303 in an action brought by a private litigant to justify the issuance of a TRO.” (See EL@M case page for more information and case documents).

Ohio Supreme Court Permits Early Voting Observers

Oct. 17 - The Ohio Supreme Court has ordered polling place observers be permitted to observe Ohio's in-person absentee voting (see case page here).

Pennsylvania Republican Party sues ACORN and state

Oct. 17 - The Pennsylvania Republican Party is suing the state and ACORN in state Commonwealth Court.  According to the report, the party is alleging voter fraud and seeks an order requiring ACORN to provide lists of voters it has registered and to finance public service announcements that would remind first-time voters that they must present identification at the polls.  The news report notes that the Allegheny County district attorney's office is investigating possible voter registration fraud involving fewer than 100 applications collected by ACORN.  Election Law @ Moritz will post more information as it becomes available. 

New Ohio Suit Seeks to Block Absentee Ballots Without Checks

Oct. 17 - According to this front-page report in the Columbus Dispatch, a new lawsuit filed in the Ohio Supreme Court seeks an order that would prevent local boards of elections throughout Ohio from processing or counting absentee ballots unless and until they are first checked against the "mismatches" that the Secretary of State discovered when comparing voter registration information with motor vehicle information.  With respect to any absentee ballot cast by a voter whose registration record is a "mismatch", the lawsuit asks the court to further require the local boards to verify the voter's eligibility.  What this suit seeks, therefore, goes beyond what had been requested--and denied--by the U.S. Supreme Court in Ohio Republican Party v. Brunner.  (That federal-court lawsuit had sought only a requirement that the Secretary of State share the "mismatch" information with the local boards.)  The new case, a direct "mandamus" action in the Ohio Supreme Court, is named State ex. rel. Mahal v. Brunner (2008-2027).  The court has ordered the parties to submit all briefs and evidence by Friday, October 24.  Starting the day after, county boards are entitled under state law to begin the processing of absentee ballots, including removing them from their envelopes and thus irretrievably including them in the pool of all ballots to be counted (after which a particular ballot no longer could be extracted if it were subsequently determined the particular ballot was not entitled to be counted).

"Joe the plumber" may be a mismatch

Oct. 16 - The Toledo Blade reports that Joe Wurzelbacher, who was referred to many times in last night's presidential debate as "Joe the plumber", is actually a registered Republican under the misspelled name Worzelbacher (Samuel J.) in the statewide voter registration database.  A search on the Ohio Secretary of State's website confirms that such a registration exists and that no registration exists for "Samuel J. Wurzelbacher".  This means that Mr. Wurzelbacher's registration would likely not match up with the state's BMV database or the federal Social Security database.  From the approximately 600,000 new voters that have registered since January 1, 2008, roughly 200,000 mismatches have been found.  These are the subject of Ohio Republican Party et al v. Brunner, a lawsuit which is now heading to the U.S. Supreme Court.

Indiana early voting proceeds at satellite sites while Lake County Republicans sue to close the sites

Oct. 16 - An Indiana court will hear the case brought by Lake County Republicans against the Lake County elections board seeking to close satellite early voting sites that the board opened without unanimous approval from all of its members.  Indiana code does require unanimous approval to open satellite sites but the board moved forward with the opening of extra sites anyway.  Republican members of the board cited an increased potential for fraud as their reason for voting against the extra sites.  A circuit judge has been selected by the Indiana Supreme Court to hear the case (See Order).  Early voting has already taken place at the satellite sites in Gary, Hammond and East Chicago.  If the judge finds that the satellite sites were illegally opened, it is unclear what will happen to these ballots cast by voters who are innocent in this dispute.  (See the EL@M case page for more information and select case documents).

ORP v. Brunner: Opposition to Stay Filed

Oct. 16 - The Ohio Republican Party has filed this Opposition to Stay of the TRO upheld yesterday by the 6th Circuit (see Major Pending Cases page here, and Litigation Tracker page here).  Among other things, the opposition defends the party's use of Section 1983 to bring its claim and argues that Secretary Brunner is merely making excuses when she claims that complying with the TRO will disrupt other elections operations.

Brunner Files Reply Brief in ORP Case

Oct. 16 - Ohio Secretary of State Jennifer Brunner has filed in the US Supreme Court this reply brief in support of her application to stay a district court order requiring her to share HAVA mismatches with county election boards in a user-friendly way.

Ga. State Court OK's ID's

Oct. 14 - A Fulton County judge has rejected a challenge to Georgia's voter ID law (See Order, EL@M case page). 

Full 6th Circuit Vacates Panel, Reinstates TRO

Oct. 14 - In Ohio Republican Party v. Brunner, the full U.S. Court of Appeals, in 9-6 ruling, reinstates the district court's requirement that Ohio Secretary of State Brunner provide voter registration "mismatch" information to the county boards of election by this Friday, October 17.   DISCLOSURE

Alabama Felony Voting Suit Dismissed

Oct. 13 - Montgomery County Circuit Court Judge Tracy McCooey has dismissed a lawsuit filed by the ACLU to clarify which felons are permitted to vote in elections under Alabama state law.  Judge McCooey determined that the plaintiffs lacked standing to bring the suit (Read the court's order).  An appeal is expected, although it is unlikely that the case will be resolved prior to the the general election in November.  See the EL@M case page for more information and additiona case documents. 

Michigan Court Orders Purges Undone

Oct. 13 - A federal trial court in Michigan has ordered Michigan election officials to undo a purge of 1,438 voters from the voter registration database.  Officials had purged the names (names of newly registered voters) after registration confirmation postcards were returned from the voters' addresses undeliverable.  However, the court also stated that Michigan does not have to restore the names of some 200,000 voters who had been purged for registering in another state.  The practice was illegal, the court said, but ordering officials to restore the names presented too great a risk of illegal voting.  See Major Pending Cases case page here, and Litigation Tracker page here.

Sixth Circuit Panel, 2-1, Vacates Order

Oct. 11 - In Ohio Republican Party v. Brunner, the majority ruled that the district court's order, coming so close to Election Day, was unduly disruptive and thus improper. The Republicans could have challenged the Secretary of State's procedures for verifying new voter registrations much earlier in the electoral process and thus, according to the opinion, should not be permitted such “late-game litigation.” The majority further opined that the Secretary was unlikely in violation of the Help America Vote Act. While “it would be nice if the system printed out a list of individuals . . . that did not match,” the majority concluded that “HAVA does not require that level of user-friendliness.” The dissenting judge accused the panel majority of both (1) an “astounding and deeply disturbing” “lack of concern for the integrity of the electoral process” and (2) a failure to follow the Sixth Circuit’s own internal procedures by releasing its decision before the full appeals court could rule on the matter. It is possible that the full Sixth Circuit will still do so, as a request for that action remains pending.  DISCLOSURE.  See Litigation Tracker page here.

Federal Court Orders Ohio SoS to Verify Registrations

Oct. 9 - The court rules that Ohio's Secretary of State is likely violating the Help America Vote Act (HAVA) by not verifying voter information in cases of "mismatches" from database checks.  The court order requires Secretary Brunner to develop a method by Oct. 17 of enabling county board of election to "effective[ly]" review mismatches.  The Secretary has filed a notice of appeal (see here)(see case page). DISCLOSURE.

Republicans Request Injunctive Relief in Ohio

Oct. 7 - As reported by the Columbus Dispatch, the Ohio Republican Party filed a renewed Motion for Temporary Restraining Order on Sunday (10/5) with the federal district court in Columbus (Ohio Republican Party v. Brunner).  This new request for injunctive relief alleges that the Secretary of State is not peforming the voter registration matching and verification required by the Help America Vote Act (HAVA). DISCLOSURE.

New Ohio suit over observers

Oct. 3 - The Columbus Dispatch reports that Republicans have filed a new lawsuit [complaint] in the Ohio Supreme Court against Secretary of State Jennifer Brunner over her decision to disallow observers at "in-person absentee voting sites" (which amount to Ohio's version of early voting) (State ex rel. Stokes v. Brunner).  The Sixth Circuit federal appeals court sustained the Secretary's position, but this new suit claims that the decision was based on a misinterpretation of state law.  See the EL@M case page for documents and more information.  

Ohio Supremes Order Brunner to Honor Ballot Requests

Oct. 2 - Today, the Ohio Supreme Court unanimously voted to order Secretary of State Jennifer Brunner to command local boards of elections to honor absentee ballot request forms designed by the McCain campaign and submitted by voters.  Brunner had contended that the requests could not be honored because the voters who submitted them had failed to place a check mark in a box next to a statement confirming  the voter's qualifications to vote.  "We 'must avoid,'" wrote the court, "'unduly technical interpretations [of the election code] that impede the public policy favoring free, competitive elections.'"  For more info, see our case page and  this analysis. [DISCLOSURE].

Ohio Supreme Court Releases Opinion in 5-Day Case

Oct. 1 - The Ohio Supreme Court released it's written opinion today in State ex rel. Colvin v. Brunner.  The Court indicated, by brief written entry, on Monday (9/29) that it was denying the petition for a writ of mandamus, but today's slip opinion provides the underlying reasoning behind the Court's 4-3 ruling. [DISCLOSURE].


Daniel P. Tokaji

What's the Matter with Kobach?

Daniel P. Tokaji

By "Kobach," I mean the Kobach v. EAC case in which the Tenth Circuit heard oral argument Monday – rather than its lead plaintiff, Kansas’ controversial Secretary of State Kris Kobach, who argued the position of his state and the State of Arizona. This post discusses what’s at issue in the case, where the district court went wrong, and what the Tenth Circuit should do.

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In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

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Info & Analysis

Judge Denies Motion for Preliminary Injunction in NC Case

U.S. District Judge Thomas D. Schroeder denied the motion for a preliminary injunction sought by the plaintiffs in a case challenging a new North Carolina voting law as violating the Voting Rights Act and the federal Constitution. Judge Schroeder also denied the defendants' motion for judgment on the pleadings. The case is North Carolina NAACP v. McCrory.

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