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
Tuesday, August 29
Naturalized Citizens Sue to Stop Ohio Challenge Law
Naturalized citizens and groups representing their interests brought a federal lawsuit today, challenging a new provision of Ohio's election law. The complaint in Boustani v. Blackwell (Case No. 1:06-cv-02065-CAB), challenges an amendment to Ohio's challenge law that was enacted as a part of House Bill 3 earlier this year. The ACLU's press release announcing the case may be found here.

The new provision (Ohio Rev. Code section 3505.20) requires naturalized citizens to produce a certificate of naturalization at the polling place, if their eligibility to vote is challenged. Those who are unable to do so are denied a regular ballot, and compelled to cast a provisional ballot. Those provisional ballots will only be counted if the challenged naturalized citizens provide proof of citizenship within 10 days.

I'm one of the attorneys on the case, along with the ACLU, Brennan Center, and Lawyers Committee for Civil Rights. The plaintiffs are 18 naturalized citizens and community groups whose members include naturalized citizens.
Monday, August 28
Florida's Registration Rules Blocked
A U.S. District Court in Florida has issued a preliminary injunction against new state rules governing groups engaged in voter registration efforts. The order in League of Women Voters of Florida v. Cobb may be found here and the press release from the Brennan Center, which is counsel in the case, is available here.

Florida's law would have imposed monetary fines on groups, other than political parties, which collect registration forms but fail timely to submit them. The opinion from U.S. District Judge Judge Patricia A. Seitz concludes that the law unconstitutionally discriminates in favor of political parties, and against nonpartisan groups like the League and labor unions which brought the case. The court finds that the heavy fines imposed by the law would chill their speech and association rights, in violation of the First Amendment.

The court finds especially problematic the "strict liability" features of the law, which would subject nonpartisan groups to fines of $250 to $5000 for each form not submitted as required. The prospect of such fines, it concludes, would create a strong disincentive for individuals and groups to collect registration forms since an unintended mistake -- like misplacing a stack of forms or even having them destroyed in a fire -- could have catastrophic effects. In fact, the League stopped its registration activites earlier this year due to the law's passage. Given that its annual budget is just $80,000, just a handful of mistakes could put it out of business.

As I've previously noted, voter registration could be the most active front in election reform activity this year. That's true not only because of the Help America Vote Act's new requirement of statewide registration lists, but also because of the more stringent registration rules that Florida and some other states have imposed. The Brennan Center previously won a ruling against the State of Washington's registration practices, as discussed here. Today's ruling could have significant implications for states like Ohio, where the Brennan Center has also brought a lawsuit. The regulation of registration promises to be an issue to watch for the remainder of this election season.
Sunday, August 27
Implementing Missouri's Voter ID Law
The blogging silence over the past several days is due to the fact that I've been on the road and my laptop is broken (though, fortunately, a new one should be arriving tomorrow). Among the things to catch up on is the implementation of Missouri's new photo ID law, discussed in this report from today's Kansas City Star.

Earlier this year, Missouri became the third state to require photo identification in order to have one's vote counted, the other two being Georgia and Indiana. The Star reports on the Department of Revenue's modest efforts at outreach to voters who lack the required identification. Elderly and disabled voters are especially likely to lack ID, so the state is trying to have mobile vans sent out to them. But in order to obtain a photo ID, voters must already have in hand documentation of citizenship such as a birth certificate, which requires a fee to obtain.

Missouri's Secretary of State previously estimated the number of eligible citizens lacking the required ID at 240,000 but, according to this AP story, the real number of voting-age citizens without photo ID may be closer to 170,000. In any event, there are a lot of people out there who will have to have photo ID if they're to have their votes counted.

The Missouri ACLU has filed a lawsuit in state court challenging the ID requirement (Jackson County v. State of Missouri), and a motion for a preliminary injunction is pending. The claims in that case are based on a provision of the state constitution, the Hancock Amendment, which prohibits the imposition of financial burdens on counties without state funding. In effect, the ACLU is arguing that the State of Missouri has imposed an unfunded mandate on Missouri counties by requiring voter ID. As far as I can tell, no one has yet brought a challenge to the law under the U.S. Constitution -- as was done in Indiana and Georgia -- but I'd expect such a case to be filed in the event that the state constitutional claims are rejected.

Update: A reader informs me that there's another case pending in Missouri state court, challenging the ID on the ground that it infringes voting rights protected by the state constitution. That case, Weinshenk v. State of Missouri, has been consolidated with the Jackson County case. The AP had this report at the time the Weinshenk case was filed, and I'm now posting the plaintiffs' petition, motion for a preliminary injunction, and preliminary injunction brief.
Friday, August 18
ESI's Report on the VVPAT
Earlier this week, the Election Science Institute (ESI) released this report regarding the use of an electronic voting system with a contemporaneous paper record. The focus of the report is the implementation of a Diebold system in Cuyahoga County, Ohio, but the report is essential reading for anyone who's interested in the ongoing debates regarding electronic voting. It's received a fair amount of coverage, including stories in the Columbus Dispatch and Cleveland Plain Dealer, as well as this cogent analysis from Dan Seligson of electionline.org.

First some background: For several years now, a debate has raged over whether electronic voting systems should be required to generate a contemporaneous paper record, commonly known as a "voter verified paper audit trail" or VVPAT. This is typically a strip of paper printed behind a transparent screen, which voters may see but not touch at the time of voting. In theory, it provides a reliable record against which electronic vote tallies can be checked. I've discussed the VVPAT on many occasions, summarizing it most recently here. For the record, I've been strongly opposed to laws that require a VVPAT, due to my doubts about whether it is a workable and effective solution to the security issues that have been raised about electronic voting.

ESI's report provides the first in-depth analysis of the functioning of an electronic voting system with a VVPAT in a real-world environment. (This is the sort of analysis, by the way, that would have been nice to do before anyone urged passage of a state or federal law requiring VVPATs. ) The report raises some very troubling questions, especially for states like Ohio that have passed laws making the VVPAT the "official ballot" of record in the event of a recount. ORC 3506.18.

Most troubling is the finding that, in Cuyahoga County, almost 10% of VVPAT records were "destroyed, blank, illegible, missing, taped together or otherwise compromised." The fact that the VVPAT is the "official ballot," as a matter of law, creates a very real possibility of an election being wrongly decided based on paper records that we know to be incomplete or inaccurate.

Imagine for example an election in which polling books show 100,000 people record, and for which 100,000 electronic vote records exist. But suppose that there are only 90,000 uncompromised VVPAT records available, the rest having been lost or damaged due to printer jams, missing text, or other anomalies. In the event of a recount, the paper tape would be the official record of the vote even if there are good reasons to believe that the electronic record is more accuate. It's not hard to see how the wrong person might be elected to office, even in a situation where we know the opposing candidate really won. And it's no stretch to foresee that elections will be wrongly decided, if these problems are not fixed.

It should be noted that the ESI team includes highly respected election adminstration experts, such as Michael Alvarez of the Caltech/MIT Voting Technology Project and Thad Hall of University of Utah. These are not people whom one would characterize as alarmists by any stretch. Yet their findings are alarming, when taking in the context of existing law.

What's hard to say for sure is what exactly caused the serious problems with the VVPAT in Cuyahoga -- in particular, whether the problem lies with the equipment, the manner in which it's being used, or both. In a letter to Cuyahoga County commissioners, Diebold asserts that the ESI report is "inaccurate and the result of an erroneous and misleading investigation that is clearly false." Diebold claims that the VVPAT can be reconciled against the electronic records stored in memory cards, if "Election Day administrative actions are incorporated into the analysis."

Diebold claims that deficiencies in poll worker training, rather than with the machines, caused the reported problems. According to its letter, poll workers swapped memory cards, taking them from one machine to another, without also swapping the VVPAT records. This would indeed create a discrepancy between the electronic and paper records -- and, if true, is another very disturbing allegation. It does not, however, explain the high failure rate with the VVPAT prinouts that ESI found, a problem that Diebold also attributes to inadequate poll worker training.

So what was the cause of the major problems with the VVPAT records? Was it mechanical problems or inadequate poll worker training? It's hard to answer this question definitively, but I suspect that it's some combination of these and perhaps other factors.

In any event, the ESI findings suggest that there are serious practical problems with the implementation of present-generation VVPAT systems. We simply don't know whether VVPAT systems in other places have the same problems found in Cuyahoga, because no one's done a comparable analysis.

ESI's report certainly provides additional reasons for doubting the assumption that has been a prime motivation for making the VVPAT the official ballot of record -- namely, that paper records are necessarily more accurate than electronic records. The report suggests the potential for very serious problems in states that have passed such laws. Unless the mechanical and/or training issues found in the ESI report are resolved, it is quite likely that reliance on the VVPAT in recounts will lead to the wrong result in some future election.
Saturday, August 12
Blackwell's Advisory on Voter ID
The Cleveland Plain Dealer recently published this story on an advisory issued by the office of Ohio Secretary of State Ken Blackwell, that has some voting rights advocates very upset. The advisory (Advisory No. 2006-05) was issued on June 5, 2006, to implement the provisions of Ohio's new comprehensive election administration bill, Sub HB 3.

What's got advocates in an uproar is Blackwell's written instruction to county boards of elections, on how to implement Ohio's new voter identification requirement. As of this year, Ohio requires all voters to provide some proof of their identity in order to cast a regular ballot. Though photo ID is not required, an Ohio driver's license should be accepted as proof of identity whether or not it has the voter's current address. On the other hand, non-photo ID -- such as a utility bill, bank statement, or government document -- must have the voter's name and current address in order to be considered valid. The Ohio ID requirements are set forth in greater detail in this new eBook entry.

The trouble with the advisory, according to voting rights advocates, is that it says that voters' identification must provide a current address, even if it's photo ID. I think they've got a legitimate beef. Here's the language from Blackwell's advisory (which appears at p. 8):
The form of identification that may be used includes the voter's current and valid photo identification card, military identification, copy of utility bill, bank statement, paycheck, government check, or government document showing the voter's name and current address. (Emphasis added)
As written, the highlighted language seems to apply to all the listed forms of identification. But in fact, a voter whose driver's license has her former address should be able to cast a regular ballot under Ohio law. The advice that the Secretary of State has given is therefore incorrect. At best, it is misleading.

This could turn into a real problem, if the Secretary of State doesn't take adequate steps to correct this advisory. According to the Plain Dealer, of 27 boards of election surveyed, "11 said voters who show up with ID that doesn't match their address in the poll book will have to vote by provisional ballot."

The Plain Dealer reports that the Secretary of State's office has sent a clarifying email to the boards of election. Even if that email provided correct information, that's not sufficient. The advisory with the misleading information is still out there, and may mistakenly be relied upon by voters, advocates, the media or, worst of all, poll workers seeking to understand the new (and very complicated) requirements of Ohio election law.

Though voting rights advocates claim this incident proves that Blackwell is out to suppress the vote, I'm willing to accept the explanation that this was an honest mistake ... at least provisionally. The problem is that an email to county boards of election isn't sufficient to correct this mistake. If it was indeed an honest error, then Blackwell's office should be willing to publish a new advisory -- available for everyone to see -- correcting the mistake in his first one.
Thursday, August 10
EAC Chairman DeGregorio on Arizona
In this post Monday, I discussed the position statement of Election Assistance Commission Vice-Chair Ray Martinez III, regarding a Tally Vote on Arizona's proof-of-citizenship requirements. In a nutshell, Commissioner Martinez opposed a proposal by EAC Chairman Paul DeGregorio, to change the instructions on the federal voter registration form, in order to accommodate Arizona's requirement that voters produce proof of citizenship when they register.

On Tuesday, Chairman DeGregorio posted this statement setting forth his views on the issue, including his reasons for seeking to change the federal form instructions. He cites Judge Silver's opinion denying a temporary restraining order against Arizona's requirement. He notes that the Arizona Secretary of State requested revision of the federal form instructions after that opinion. Chairman DeGregorio also expresses the view that the judge's ruling was "sound and not likely to be overturned." (My own view of that ruling, which is to the contrary, may be found here. ) He commits to making it an EAC priority to issue federal regulations regarding the federal form.

Along with his statement, Chairman DeGregorio on Tuesday posted these documents regarding the Tally Vote, which include the four commissioner's ballots on the question. They reveal that the Tally Vote to overturn the EAC's prior guidance on the question failed on a party-line vote -- with the two Republican appointees (Chairman DeGregorio and Commissioner Davidson) supporting it and the two Democratic appointees (Commissioners Martinez and Hillman) opposing it. These votes are not a great surprise, but do reinforce the concerns that I expressed on Monday, regarding the potential for breakdown in the bipartisan consensus that has previously characterized the EAC's deliberations.
Tuesday, August 8
Is Joy Padgett a Sore Loser?
When Rep. Bob Ney (R-OH) announced on Monday that he wouldn't seek re-election, Ohio State Senator Joy Padgett quickly emerged as the front-runner to replace him as the Republican Party's nominee for his U.S. House seat. Senator Padgett was the running mate of Ohio Attorney General Jim Petro, who unsuccessfully sought the Republican Party's nomination for Governor -- but was defeated by his longtime adversary, Secretary of State Ken Blackwell. As the AP reports here, there have been some suggestions that this renders Padgett ineligible to seek the congressional seat that Ney is vacating, by virtue of Ohio's "sore loser" law.

After reviewing Ohio's laws on the question, I've arrived at the tentative conclusion Ohio law wouldn't prohibit Padgett from seeking Ney's seat. That's true regardless of whether she's chosen by special election or party committee appointment.

If Ney officially withdraws more than 80 days before the election -- Friday, August 18 by by count -- then Ohio Revised Code section 3513.312 requires a special election to be held to determine the Republican nominee:
(A) Notwithstanding section 3513.31 of the Revised Code, if a person nominated in a primary election as a party candidate for the office of representative to congress for election at the next general election withdraws as such candidate prior to the eightieth day before the day of such general election ..., the vacancy in the party nomination so created shall be filled by a special election held in accordance with division (B) of this section.
Alternatively, if Ney officially withdraws more than 80 but not more than 76 days before the election, then ORC 3513.31 would appear to govern, as Law Dork (and Moritz alum) Chris Geidner explains in this post. Under that provision, the vacancy would be filled by the "district committee of the major political party that made the nomination at the primary election."

Either way, I don't think Rep. Padgett is barred from seeking Ney's seat under state law. Ohio Revised Code section 3513.04 (the "sore loser" statute) provides, in pertinent part:

No person who seeks party nomination for an office or position at a primary election ... shall be permitted to become a candidate by nominating petition or by declaration of intent to be a write-in candidate at the following general election ....
This statute is designed to address situations where a primary election loser seeks to run as an independent candidate -- either for that office or another office -- in the general election. See State ex rel. Gottlieb v. Sulligan, 175 Ohio St. 238 (1963) (purpose of 3513.04 is to "to prevent a disappointed party candidate who has failed to be selected as a nominee in the primary from again trying to be placed on the elective ballot by entering the arena as an independent candidate"). In other words, it's designed to prevent the sort of thing that Senator Joe Lieberman has threatened to do in Connecticut if he loses.

It's pretty clear that the "sore loser" statute wouldn't apply, if Ney waits until August 21 to formally withdraw, and Padgett is then selected by a party commitee under 3513.31. Under that scenario, Padgett wouldn't have "become a candidate by nominating petition or by declaration of intent to be a write-in candidate at the following general election." Rather, she'd be the appointee of her party committee, and Sulligan held that a candidate chosen by party committee isn't a candidate by "nominating petition."

What if Rep. Ney were to withdraw by August 18, thus necessitating a special election under 3513.312? I don't think the "sore loser" statute would apply in that scenario either. Padgett wouldn't be a general election candidate by nominating petition or write in; instead, she'd be a general election candidate by virtue of having been elected through a special primary election. This too finds supported in Sulligan, which distinguishes party nominees from independent candidates who get on the ballot by "nominating petition":

An examination of the election laws indicates that the phrase, "nominating petition," has a specific meaning. Under our statutes the candidates for public office may gain nomination by two methods: One, by filing a declaration of candidacy accompanied by a petition entitling one to be a participant in the direct party primary wherein candidates from all political parties seek their nomination; or, two, by what is designated as a nominating petition, the method by which the independent candidate may seek his place on the elective ballot. (See Section 3513.252, Revised Code.) In other words, the nominating petition is the method by which the independent candidate seeks his place on the elective ballot.
In sum, Sen. Padgett may have been a primary election loser, but she isn't a sore loser, because she's not seeking to "become a candidate by nominating petition or by declaration of intent to be a write-in candidate at the following general election."

In this post from yesterday evening, Rick Hasen mentioned another provision that might arguably apply, ORC section 3513.052(B). This statute prevents someone from running for office "if that person, for the same election, has already filed a declaration of candidacy, a declaration of intent to be a write-in candidate, or a nominating petition, or has become a candidate through party nomination at a primary election or by the filling of a vacancy ...." The basic idea here, as I understand it, is to prevent someone from running for two offices at the same time. I don't think the special primary election for Ney's congressional seat would be deemed the "same election" as the gubernatorial primary that Petro and Padgett lost.

In an interesting twist, the office of Secretary of State Ken Blackwell -- the Petro-Padgett ticket's opponent in the primary -- is reported here to be reviewing whether or not Ohio law bars Padgett from running. I think that the answer to that question, like the one posed in the title to this post, is "no."

UPDATE: The Ohio Attorney General's office has issued this opinion, which reaches the conclusion that the sore loser statute doesn't apply, consistent with my analysis. Geidner offers this analysis of the AG's opinion.
Monday, August 7
Disagreement on the EAC
One of the most remarkable features of the Election Assistance Commission (EAC) during its first years of existence is the bipartisan commission's conscious effort to act by consensus. As constituted by the Help America Vote Act of 2002 (HAVA), the Commission consists of two Democrats and two Republicans. Despite the politically charged nature of many election administration questions, the commission has managed to make its decisions by unanimous votes. This was true even of such contentious issues as provisional voting during the 2004 election season.

There now appears to be a fissure in the EAC's consensus decisionmaking. Commissioner Ray Martinez III, the EAC's Vice-Chair, has issued this position statement in response to a Tally Vote proposed by his fellow Commissioner, EAC Chair Paul DeGregorio last month. According to Commissioner Martinez's statement, Chairman DeGregorio proposed amendments to the instructions accompanying the federal form, in order to accommodate the State of Arizona's proof-of-citizenship requirement. I've previously blogged on the Arizona controversy several times, most recently here.

Although this statement was issued on July 10, 2006, it's received no public attention, as far as I'm aware. Commissioner Martinez's statement is nevertheless of great interest, both substantively and procedurally.

As a matter of substance, Martinez stands by a prior opinion letter from EAC Executive Director Tom Wilkey, previously discussed here. That letter took the position that Arizona lacked the power to demand additional documentation beyond that set forth in the federal form, before accepting the federal voter registration form mandated by the National Voter Registration Act (NVRA). Though this may appear to be an arcane dispute, it's actually a very significant one since it implicates states' efforts to impose more stringent requirements on voters seeking to register. According to Commissioner Martinez, the position that the EAC has took on Arizona is consistent with guidance previously given to Florida, when that state sought to impose an additional requirement on those seeking to register.

As a matter of procedure, Commissioner Martinez objects to the EAC reversing its prior ruling while judicial proceedings regarding the use of the federal form in Arizona are still pending. U.S. District Judge Roslyn Silver denied a temporary restraining order against Arizona's practice of requiring proof of citizenship (a decision that I believe to be incorrect as discussed here). That decision isn't a final judgment, nor is it clear that other courts -- including the court of appeals -- will come down the same way. The EAC's reversal of its position with respect to Arizona, Commissioner Martinez argues, could create confusion on the part of other states.

Commissioner Martinez also objects to the procedure of having a Tally Vote on this question. He says this "mark[s] the first time that a decision by the EAC commissioners will be decided on a less than unanimous basis," expressing concern that this could mark a "fundamental turning point" for the EAC.

I don't know enough about the Tally Vote procedure to evaluate its propriety here, and can't find anything else on the EAC's website regarding the Arizona registration issue. It does seem to me that the question of how the NVRA applies to voter registration requirements like Arizona's is one over which reasonable people can disagree. Still, one can't help but wonder whether this may be the first of many issues on which there is a breakdown of the consensus that has thus far characterized EAC decisionmaking on hot-botton election administration issues.
Thursday, August 3
Indiana Voter ID Briefs
More briefs are now available in the appeal presently pending before the Seventh Circuit, regarding Indiana's requirement that voters produce photo identification in order to vote (Crawford v. Marion County Board of Elections and Indiana Democratic Party v. Rokita). In addition to Plaintiffs-Appellants' opening brief on the merits, which I previously posted here, I'm posting the following briefs:
- an amicus brief from the Brennan Center for Justice in support of Plaintiffs,

- the brief of Secretary of State Todd Rokita and the other state defendants,

- the brief of the Marion County Board of Elections,

- Plaintiffs' reply brief.
The district court order from which this appeal is taken may be found here, and my initial thoughts on that order are here.
Wednesday, August 2
Disability Rights Suit Over California Voting Equipment
In a suit with nationwide implications, the Paralyzed Veterans of America filed suit yesterday against California election officials, challenging the accessibility of voting systems used by five counties in that state. The complaint, which may be found here asserts violations of the Fourteenth Amendment to the U.S. Constitution and the Help America Vote Act of 2002 ("HAVA"). Other plaintiffs include the American Association of People with Disabilities, the California Council on the Blind, and individual voters with disabilities.

In brief, the plaintiffs allege that none of the systems certified in California provide adequate access for people with disabilities. There are three types of equipment alleged to be inadequately accessible. First, the suit claims that the ES&S AutoMARK system used in San Francisco, Marin, and Sonoma County's doesn't provide for private and independent voting for people with manual dexterity limitations. Second, the suit claims that the direct record electronic ("DRE") system used to accommodate people with disabilities in Alameda County isn't fully accessible to people with visual disabilities, who can't read the contemporaraneous paper record (or "VVPAT") that this system generates. Finally, they allege that Yolo County only has an optical-scan system, which doesn't accommodate people with visual or manual impairments.

Assuming the facts alleged to be true, the strongest claim appears to lie against Yolo County. If Yolo is exclusively using optical-scan systems, as alleged, it's pretty clear that it's not complying with HAVA's mandate of providing at least one accessible unit per polling place. Assuming that the facts are true, and that the court concludes that HAVA is privately enforceable through section 1983 (as the Sixth Circuit previously concluded in Sandusky County Democratic Party v. Blackwell), plaintiffs should prevail on this claim.

A bit harder is the question whether the AutoMARK system complies with the disability access requirements of federal law. I've previously discussed this issue here and ES&S's website describes its system here. Briefly, the AutoMARK system has a DRE-like interface, but doesn't actually record the vote; instead, it prints the voter's choices on a paper ballot that the voter may then insert in an optical-scan reader. My impression is that this hinges on a factual question. Specifically, it turns on whether manually impaired voters can use this system without assistance, and thus whether it provides them the "same opportunity for access and participation" that able-bodied voters enjoy, as HAVA requires. This has far-reaching implications, since the AutoMARK is being used in a number of other states.

The issue that may prove most difficult has to do with the DRE systems that generate a contemporaneous paper record, or VVPAT. It's certainly true, as plaintiffs allege, that the VVPAT isn't accessible to people with visual disabilities, who obviously can't read it. Plaintiffs' argument, if I understand it, is that it's a problem to use the VVPAT as the official ballot of record for purposes of recounts when it can't be verified by some disabled voters. This argument has some force. The problem is that, as far as I'm aware, there's no system available that can "read back" the paper ballot for visually impaired voters, thereby allowing them to verify that the choices recorded on paper are accurate. To accept plaintiffs' argument would thus, it seems to me, have the effect of invalidating any state law requiring that the VVPAT be used as the official ballot for purposes of recounts. Were the court to agree, this would be a rather earth-shaking holding, given that a number of states have adopted such a requirement.

This is the first case of its kind and definitely one to watch.
Tuesday, August 1
Order in Washington Registration Case
There was a major development today regarding the statewide registration databases mandated by the Help America Vote Act of 2002 ("HAVA"). A federal district judge issued this preliminary injunction order against a Washington state law which required that voters' names be "matched" against Social Security or driver's license records before they could be registered to vote. The case was brought on behalf of a coalition of voting rights groups by the Brennan Center for Justice, whose press release on the decision may be found here.

The order, from U.S. District Judge Ricardo Martinez, finds two separate problems with Washington's law. First, the court concludes that it probably conflicts with HAVA's section 303 (42 USC 15483), which doesn't require the matching of voter's information against Social Security and driver's license databases in order for them to be registered (though it does allow voters to be exempted from the requirement of showing ID at the polls if such matching is done). Second, the court finds that the Washington law likely violates a seldom-used provision of the Voting Rights Act of 1870 (42 USC 1971), which prohibits states from denying the vote based on an "error or omission on any record or paper" relating to registration. The court found it unneccessary to reach the constitutional issues that plaintiffs raised.

This is a significant decision. Every state is supposed to have a statewide registration database in place this year by virtue of HAVA. While these databases haven't generated nearly as much media attention as voting machines, they're probably more significant in terms of their overall impact on participation. As far as I'm aware, this is the first decision to hold that any state's database matching violates HAVA. The court's reliance on section 1971 is equally significant. We may see this law being used by other voting rights plaintiffs, as a way of challenging restrictive registration rules or other barriers to voting.

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