Dan Tokaji's Blog
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
Wednesday, April 20
Not Your Father's Justice Department
Earlier this month, Arizona Governor Janet Napolitano vetoed a proposed ID bill, saying it would violate federal law by preventing voters without photo ID from receiving provisional ballots. On Friday, the the Justice Department issued this letter to Arizona Secretary of State Jan Brewer. The letter, signed by Sheldon Bradshaw, a deputy assistant attorney general, opines that the Help America Vote Act doesn't prohibit a state from requiring voters to show photo ID before receiving a provisional ballot.

The Arizona Republic has this story, which addresses the political backdrop. As in other states, Republicans have been pressing for the ID requirement while Democrats have opposed it. The Governor's legal counsel disagrees with the Bradshaw's opinion, asserting that DOJ has misinterpreted HAVA. According to the Republic:
The fact that the Justice letter was written by Bradshaw and not the head of the Civil Rights Division or the department's chief of the Voting Section could raise questions about partisan political maneuvering. According to a federal government Web site, Bradshaw was not even employed at DOJ at the time he wrote to Brewer. His letter is dated April 15, but a news release announced his hire as chief counsel for the Food and Drug Administration "effective April 1."
My take: When I first read the story about this a few days ago, I couldn't believe that DOJ's opinion letter actually said what it was reported to have said. Well, having now seen the letter ... I'm afraid it did.

DOJ didn't just get the law wrong; it's interpretation of HAVA simply isn't a plausible one. DOJ's opinion letter purports to interpret HAVA's section 302, which requires that voters receive provisional ballots if their names don't appear on the registration list. Specifically, the law requires that such voters be allowed to cast a provisional ballots if they execute an affirmation that they are (1) registered in the jurisdiction where they desire to vote, and (2) eligible to vote in that election. 42 U.S.C. 15482(a)(2).

That language is clear enough on its face to demonstrate that the problem with Justice's interpretation. Voters must be allowed to cast a provisional ballot if they sign the affirmation, whether or not election officials think they're eligible. In fact, the law specifically provides that a voter be permitted to cast a provisional ballot even if "an election official asserts that the individual is not eligible to vote." Determining whether those provisional ballots should be counted is another matter -- that's to be determined in accordance with eligibility requirements prescribed by state law. What's unambiguous is the requirement that voters be allowed to cast a provisional ballot if they sign the affirmation, whether or not they have ID.

It gets even worse for DOJ. There's another provision of HAVA, not even mentioned in Bradshaw's letter for DOJ, that even more clearly demonstrates the problem with his opinion letter. Section 303(b) of HAVA requires that a voter who's subject to the law's ID requirement but doesn't have it be allowed to cast a provisional ballot. 42 USC 15483(b)(2)(B)(i). If a voter who lacks HAVA-mandated ID must still be allowed to cast a provisional ballot, then a voter who's not even required by HAVA to show ID surely must be allowed to do so.

Such sloppy work by DOJ can only fuel the impression that its interpretation of election laws is being influenced by partisan political considerations.

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Moritz College of Law The Ohio State University