State’s voter security laws under assault

Sound Off is a public forum. Articles are selected from letters to the editor or may be written specifically for this feature. Today, Jonathan Bechtle, staff counsel for the Evergreen Freedom Foundation, describes efforts by an out-of-state group to prevent Washington from implementing regulations intended to safeguard the integrity of its elections.

Jan. 1, 2006 was the final deadline set by the Help America Vote Act (HAVA) for states to implement a statewide voter registration database.

Washington state’s election officials were able to launch their new database that day, then dove into the long task of weeding out dead wood.

Although engrossed in this task, the officials might have noticed in passing a report published in March 2006 by the liberal NYU School of Law’s Brennan Center for Justice.

The report was a comprehensive review of state voter databases that seemed to give Washington state decent marks. But just two months later the Secretary of State was served with a lawsuit by a coalition of labor, minority and activist groups, represented by — surprise — Brennan Center attorneys (Washington Association of Churches v. Reed).

At first the case seemed like a minor spat over a registration procedure, but with the passage of time it’s obvious this was only the first step in a Brennan Center campaign.

The goal is to twist the wording of HAVA to strike down state laws which protect the integrity of voter rolls. The campaign has succeeded in changing laws in Washington, Maryland, Pennsylvania, Texas, North Carolina, and is currently waging a legal fight against Florida.

The 11th Circuit Court of Appeals just issued a decision in Florida’s favor, but election law attorneys need to be on alert for the implications of this scheme and its impact on courts’ interpretation of HAVA.

Photo ID has been getting all the press lately, especially after the Supreme Court’s decision in April, but Indiana’s law protects only one aspect of voting.

In states with high rates of mail voting, and even in those with mostly poll ballots, the voter registration system is the first line of defense against illegal ballots.

If the voter rolls are accurate and contain only legal voters, there is far less opportunity for fraud and errors that lead to illegal votes. And with a high-turnout presidential election coming down the pike, states will be flooded with new and updated registrations, some from dubious sources.

It’s imperative that states be able to implement strong security checks to ensure the integrity of their state voter rolls.

In WAC v. Reed, plaintiffs challenged a state law that required, as per HAVA, voters to put their drivers’ license number or the last four digits of their Social Security number on the registration form.

The state would check those numbers against motor vehicles or Social Security databases. If the numbers didn’t match the state would work with the voter to identify data errors, but not register them unless a match could eventually be made (with allowance for common sense overrides).

The Brennan Center flooded the court with stacks of research arguing this law would disenfranchise thousands of voters due to database errors and that it conflicted with HAVA.

Interestingly, they were able to produce only two voters who said they were prevented from voting by this law — claims later proven to be false.

District Court Judge Ricardo Martinez granted a preliminary injunction against Washington’s law in August 2006 because he found it conflicted with the Voting Rights Act and three provisions of HAVA. The case was later settled, with Washington agreeing to place registrants on the voter roll even if officials can’t verify identity with the drivers’ license or Social Security match.

The Brennan Center took Martinez’s decision and filed an identical case against Florida’s similar registration-matching law in September 2007. (NAACP v. Browning)

The federal district court in Tallahassee followed the Washington precedent and issued a preliminary injunction. But Florida fought back, and on April 3, the 11th Circuit Court of Appeals reversed the decision.

The core issue of the cases is, as the appellate court wrote, “whether Congress intended either HAVA or…the Civil Rights Act to displace state laws like (Florida’s statute).”

The court looked at three pieces of HAVA the lower courts had identified as conflicting with Washington’s and Florida’s matching law, but found no preemption.

First the court examined HAVA Section 303(a), which requires states to create a unique database identifier for each voter and to use a drivers’ license number or last four digits of the Social Security number as the identifier.

The section instructs states to verify the validity of these numbers, giving rise to the states’ matching laws.

The challengers argued, and the lower courts agreed, that this verification requirement was “intended as an administrative safeguard…and not as a restriction on voter eligibility.”

Because the state laws used the match to restrict registrations, the provisions were in conflict. The 11th Circuit disagreed, finding that Section 303(a) merely concerns the management of databases, and that the plaintiffs had “failed to show how making matching a prerequisite to registration undermines the functioning of the database itself…, the only objective of section 303(a).”

Second, the court looked at HAVA Section 303(b) which requires first-time voters who register by mail to provide voter ID to vote, unless their drivers’ license or Social Security number has been matched.

Lower courts decided this must be in conflict with the state matching laws, since the section clearly meant a voter who showed ID could vote without having his numbers matched.

Wrong again, said the appellate court, due to misunderstanding that Section 303(b) is not about registration requirements, but about preventing fraud in mail voting.

The only argument they could find for a real conflict was that the state laws made Section 303(b) “superfluous.”

But if the court agreed with the plaintiffs on that point, the judges wrote, they would have to strike down every state law that was parallel and consistent with a federal law.

Third, challengers argued the matching laws violated HAVA Section 303(b)(2)(A), the “fail-safe” requirement for states to provide provisional ballots for voters not on a polling place list.

At first glance it’s hard to see the conflict, since both Washington and Florida allow voters to use provisional ballots in accord with HAVA, and will count them if the voter can prove within a few days that he is eligible and registered to vote.

The 11th Circuit mused that a conflict could be seen if one holds the “substantive vision of provisional voting,” a view that provisional ballots should be counted for any voter eligible to register, even if they haven’t actually registered.

But the court felt “such an interpretation would turn (HAVA) into a sweeping federal invalidation of state voter registration requirements.”

The judges said, “Congress did not intent to do away with the importance and consequences of state registration requirements.”

As encouraging as the 11th Circuit’s decision is, however, it’s alarming to see the end goal of the Brennan Center and its allies as revealed in their briefs. They intend to use HAVA’s provisions as a ceiling on state registration laws, to prevent states from adding identity requirements, from even checking the validity of HAVA’s identity requirements, and to use provisional ballots to completely bypass registration laws.

And this loss won’t stop them. The Brennan Center’s attorneys have already used the lower court decisions to do much damage.

They influenced California, Maryland and North Carolina to alter their registration match requirements to allow voters with non-matching information to be registered.

They used the WAC v. Reed decision to push Texas and Pennsylvania to abandon their matching requirements.

In fact, Pennsylvania issued a memo to that effect just eight days after Judge Ricardo’s decision.

With the 2008 election approaching quickly, election attorneys in every state should be on the lookout for attempts to reduce registration security laws, use the 11th Circuit decision to bolster the resolve of state election officials, and oppose any attempts to construe HAVA’s requirements as a ceiling on registration security laws.

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