This topic is monitored by Moritz Law Professor Terri L. Enns
Special Commentary: Stealing Votes Before Election Day
We applaud Ohio Secretary of State Blackwell for announcing that voter registration forms must be accepted as valid regardless of the weight of the paper used, as urged in the following Special Commentary. But we still deplore the fact that his initial directive required the issuance of this corrective announcement, especially because some Ohio counties reportedly had been rejecting forms in accordance with the initial directive. At this point, it is essential that no one be disenfranchised because of the confusion that Blackwell has caused. The way to prevent such disenfranchisement is to give a provisional ballot to anyone from the offending counties who goes to the polls on Election Day but does not appear on the registration rolls. If these voters sign an affidavit saying that they submitted registration forms, and their eligibility to vote (age, address, etc.) is subsequently verified, then their votes should be counted along with everyone else's, as provided by provisional balloting procedures.
Even with Mr. Blackwell's "retraction" of the paperweight directive, he may have succeeded in creating a chilling effect on voter registration. The directive potentially chills both those who are circulating registration forms and those who are deciding whether or not to complete them, increasing any cynicism about government that may have made them hesitant to register in the first place. Sadly, it also may chill elections officials throughout the state, who have received a loud and clear message that Mr. Blackwell cares more about technicalities than he does about voter participation. By issuing the directive and then retracting it, Mr. Blackwell apparently tries to have his cake and eat it too: he gets the partisan "benefit" of reduced registration -- either through direct disqualification or the chilling effect -- and he may avoid prosecution for Voting Rights Act violations. But a vote discouraged is a vote denied. How sad that the officer in charge of promoting full and fair voter rights seems to be seeking out ways to discourage citizens from exercising those rights. One can only hope that this attempt to frustrate increased voter registration will spur even more efforts to give eligible citizens access to the ballot.
With all of the paranoia about rogue codes being used to alter electronic ballots, people seem to forget that one of the best ways to steal an election is by keeping voters from getting to the polls. In Florida in 2000, thousands of legal, registered voters were disenfranchised by (at best) a reckless or (at worst) a malicious purge of the registration rolls allegedly intended to prevent convicted felons from voting. Only intense media scrutiny seems to be preventing a similar trick in Florida this year.
Meanwhile, in Ohio, Secretary of State J. Kenneth Blackwell is pre-disenfranchising voters on an even slimmer thread. He has issued a last-minute directive that will prevent the registration of qualified voters solely because their registration forms were printed on the wrong kind of paper. It would be laughable if it weren't so frightening. Secretary Blackwell's edict must be countermanded, and the thousands of voters who filled out registration forms – who were convinced that they can make a difference, and that they can use their vote to give voice to their concerns about how this country should be run – should be registered to vote without delay.
In Directive No. 2004-31, issued on September 7 to "All County Board of Elections Members, Directors, and Deputy Directors," Secretary Blackwell notes that the voter registration form "prescribed" by the Secretary of State must be "printed on white, uncoated paper of not less than 80 lb. text weight. Any Ohio form not printed on this minimum paperweight is considered to be an application for a registration form. Your board should mail the appropriate form to the person listed on the application." (Emphasis in original.) One of the problems with this directive, of course, is that paperweight information is not widely known, and does not appear, for example, on the numerous county board of elections websites that advise voters to download, print, complete, and mail back registration forms. Most or all of these websites do not indicate that "underweighted" registration forms are not registration forms but merely applications to register.
The October 4 registration deadline, however, is widely known. Voters who submit an "underweight" registration form too close to the deadline may well not receive the "properly-weighted" registration materials in time to have their return forms postmarked by October 4. In addition, some who thought they were turning in validly weighted registration forms may presume that return mail from the Secretary of State is merely a confirmation of registration and may not open the envelope until after the deadline has passed.
If Mr. Blackwell continues with this pre-emptive purge, he will be in direct violation of the 1965 Voting Rights Act, which was passed with the express purpose of preventing exactly this kind of hide-the-ball, change-the-rules shenanigans that the "ins" use to keep the "outs" from getting to the polls. 42 U.S.C. §1971(a)(2)(B) provides that "[n]o person acting under color of law" may deny a person the right to vote "because of an error or omission on any . . . paper relating to any . . . registration . . . if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election." Filling out a form on the wrong kind of paper is precisely the kind of "error" that "is not material" to determining whether a person is qualified to vote. It has nothing to do with the person's age, residence, or status as a convicted felon. An underweight registration form cannot be used to deny the right to vote.
In the bad old days before the Voting Rights Act was passed, some voter registrations were invalidated because voters failed to include the exact number of months and days when filling in their age. Mr. Blackwell has done this trick one better: while most voters can figure out their age in years, months, and days, very few voters – Mr. Blackwell included – would be able to be certain at a glance that a particular voter registration form had been printed on 80 lb. stock.
It is difficult to find any motivation for Mr. Blackwell's edict that is not malicious. The paperweight requirement was allegedly designed to promote efficient record-keeping, but it is a now-antiquated requirement of administrative convenience rather than one of voter qualification. Perhaps an elected Secretary of State, who runs and holds office as a partisan politician, cannot be entirely impartial in the administration of election laws. In a democracy, however, we must demand a minimum of elementary fairness to the citizens of the state. Mr. Blackwell's sudden decision to use this technicality to throw out voter registrations doesn't pass the smell test. It has been widely reported in the national media, including prominently in the New York Times, that voter registration efforts in Ohio are at unprecedented levels, especially among likely Democratic voters. One can only assume that Mr. Blackwell is using his office to deny these new registrants their right to participate for the most craven of partisan motives.
Mr. Blackwell must quickly "clarify" that enforcement of the paperweight requirement will not prevent any new registrant from casting a ballot on Election Day. Otherwise, litigation will surely ensue. (The Equal Protection claim regarding the differential enforcement of this requirement in different counties and precincts within Ohio is an obvious one.) In the meantime, all fair-minded Ohioans will be embarrassed and ashamed that Ken Blackwell has replaced Katherine Harris as the "poster child" for how a Secretary of State is not supposed to act.