Election Litigation Summary For CO, MI, VA

October 30, 2008

Advancement Project Litigation Round-Up

Colorado

Purged Colorado Voters Win Unprecedented Protections
to Ensure Votes are Counted

Last week, Advancement Project, a national voter protection organization, and others filed a lawsuit on behalf of Colorado Common Cause, Mi Familia Vota, a non-partisan civic engagement campaign, and Service Employees International Union (SEIU) against Colorado Secretary of State, Mike Coffman, to challenge an illegal purges and cancellation practices that apparently have removed between 16,000 and 30,000 voters from Colorado’s rolls.

An agreement reached late yesterday before a federal judge in Colorado ensures that tens of thousands of Colorado voters illegally purged from the registration lists will have their votes counted. The decision is hailed by voting rights and good-government groups in Colorado and nationwide as a victory for voters and a clear message that election officials must take the necessary steps to make sure ballots cast by eligible voters are counted.

Under the settlement between plaintiffs and the defendant, the Colorado Secretary of State, every wrongfully purged Colorado voter in question will be placed on a protection list that assumes their eligibility and guarantees that in the event they are given a provisional ballot on Election Day, county election officials will promptly verify their eligibility.

Any ballots cast by the purged voters contested at the county level will have to be reviewed by the Colorado Secretary of State as well as advocates for the purged voters — rather than be discarded and not counted, as often happens with provisional ballots — in order to make sure all eligible votes are counted. If the Secretary elects to reject the ballot, representatives of the plaintiffs will also have the opportunity to review the registration and contest any rejections of wrongfully purged voters. Additionally, the court will retain continuing jurisdiction over the tens of thousands of voters wrongfully purged, which allows plaintiffs to go directly to the judge to swiftly resolve any disputes and guarantee votes are properly counted.

This stipulation means that the purged Colorado voters in question will get at least three layers of protections — by the county, state, plaintiffs’ representatives and, if needed, a federal judge — an unprecedented degree of oversight to ensure that all eligible votes are counted.

"This settlement provides unprecedented protections to the voters of Colorado and ensures that the ballots of voters who were erroneously purged will be accurately counted," said Penda Hair of Advancement Project.

Michigan

Advancement Project Applauds Decision to Prevent
Unlawful Voter Purging Program

Yesterday, the 6th Circuit U.S. Court of Appeals upheld an earlier decision to stop Michigan from illegally purging voters from the rolls in violation of federal law. The higher court denied the state’s appeal to reestablish one of its voter removal programs, which previously resulted in the cancellation
or rejection of voter registrations based upon the return of the voter's original voter identification card as undeliverable. The court also denied the state’s request to delay restoring to the rolls approximately 5,500 voters who had been previously disenfranchised by this procedure since 2006.

Earlier this month, Judge Stephen J. Murphy III of the U.S. District Court of the Eastern District of Michigan ruled that the state's voter removal program violated the National Voter Registration Act of 1993 (NVRA). The decision came as a result of a lawsuit filed in September by Advancement Project, the ACLU National Voting Rights Project, and the law firm of Pepper Hamilton LLP on behalf of the United States Student Association (USSA), the ACLU of Michigan, and the Michigan NAACP.

The state claimed that it was permitted to remove the voters from the rolls because they were never officially registered in the first place, as a result of never having received their original voter identification cards. Judge Murphy disagreed, stating that the voters became registered once they are added to the rolls and listed as active. Therefore, Judge Murphy reasoned, the NVRA prohibited the state from removing the voters without following the federally mandated confirmation of registration procedures. The NVRA permits voters to remain on the voter rolls for at least two federal elections after they receive notice that their voter registration cards were returned as undeliverable.

The State of Michigan needs to expeditiously proceed to restore those 5,500 wrongfully purged voters to the rolls in time for the November 4th election. Regardless of which political party is disadvantaged by improper voter roll purges, the denial of the right to vote — especially if done without notification or recourse —is an unacceptable violation of America's democratic principles.

Virginia

RNC Intervenes In Advancement Project’s Virginia
Polling Place Resources Lawsuit

Earlier this week, Advancement Project sued Virginia Governor Tim Kaine and top Commonwealth election officials, on behalf of the Virginia NAACP and individual plaintiffs, out of concern that tens of thousands of voters could be disenfranchised because the state is ill-prepared to handle the unprecedented turnout that’s expected on Tuesday. The lawsuit focuses on the cities of Norfolk, Richmond, and Virginia Beach, which have adopted resource allocation plans that unconstitutionally and unlawfully under- or misallocate polling place resources, including voting machines and poll workers, in a manner that infringes and burdens the rights of the voters in these cities and that disfranchises them. The problem is particularly acute for minority voters.

In response to the lawsuit, the Defendants provided new plans for the allocation of voting machines and poll workers in these cities. Advancement Project and the plaintiffs in the lawsuit will assess this new evidence, and will continue to push for relief for Virginia voters. Also, today several Republican Committees in Virginia filed a motion to intervene in the lawsuit to block the use of paper ballots and the extension of polling hours.

“We are assessing the information but are still concerned the Virginia voters are going to be faced with extraordinary wait times, said Judith Browne-Dianis, Co-Director of Advancement Project.” Also disconcerting is that Republican Party officials are trying to block relief for Virginia voters. Why would anyone oppose getting rid of barriers to voting?"

Information just received indicates that Norfolk, Richmond, and Virginia Beach have each added voting machines and poll workers since the publication of Advancement Project’s report End of the Line? Preparing for a Surge in Voter Turnout in the 2008 General Election, which highlighted the problem of under-resourced precincts in Virginia. Yet, it will not fully alleviate the problem.

Advancement Project is seeking a number of remedies:

• An adequate number of machines be allocated to each precinct so that voters do not have to wait an excessive amount of time to vote;

• A reallocation of the existing machines and poll workers so that they are equitably distributed across precincts within each city;

• The option of voting by paper ballot if voters have been waiting in line for longer than 45 minutes;

• Extended voting hours, to 9 p.m. on Election Day.

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