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ACLU Stops Illegal Voter Purges in Michigan

Voting in Michigan isn't easy or even possible for some. ACLU's
fight for voting rights moves forward with a big win. Image cc

Secretary of State's "One Stop Voter Caging" Ends

Michael Collins
"Scoop" Independent News

Judge Karen Nelson Moore of the United States Court of Appeals for the Sixth Circuit issued an order that ends the Michigan Secretary of State's unlawful purging of voters from the registration rolls (court decision). The decision also orders Michigan officials to restore the registration status of 5,500 identified citizens who had been unlawfully removed previously. The American Civil Liberties Union (ACLU) brought suit for the Michigan State Conference of NAACP Branches, plaintiff, and plaintiff-appellees the ACLU of Michigan and the U.S. Student Association Foundation. Attorneys from both the national and Michigan ACLU are working on the case which is expected to be appealed.

State election officials followed Michigan code by purging any voter whose voter identification mailing was returned as "undeliverable" by the postal service. The program began in January 2006. It has a disproportionate impact on college students and minorities.

Michael J. Steinberg, Legal Director of the Michigan ACLU said,

"We are thrilled that thousands of voters who were illegally removed from the voter rolls will be able to vote in next week’s historic presidential election. Disenfranchisement undermines our democracy and the court decision restores a measure confidence in our electoral system."

Steinberg was positive about the broader impact of the ACLU action:

"We have reason to believe that many more people will be restored to the voter rolls as the litigation moves forward after the election. For example, Detroit officials have said that nearly 30,000 voters are removed from the rolls each year because their voter ID cards are returned as undeliverable."

Michigan Secretary of State Terri Lee Land, a Republican from Grand Rapids, is one of her party's top vote getters but she's selective about who is allowed to vote. Michigan law has a special twist to voter registration. The state receives a voter's registration, enters it into a Qualified Voter File, and then sends out a voter identification card. The law states:

"[I]f the 'original' voter identification card is not returned to the clerk’s office, its receipt is presumed and an applicant becomes a registered voter in the State of Michigan." Defs.' Mot. for Stay at 5-6; see also Mich. Comp. Laws S.S. 168.499(3), 168.500c. If, however, "the original voter identification card is returned to the clerk by the post office as nondeliverable, the clerk shall reject the registration and send the individual a notice of rejection." (court decision)

This is the target of the court case brought by the ACLU. College students, people who've moved, minorities, and transients would be more likely than most to fall victim to what the court pointed out is an unlawful scheme according the National Voter Registration Act of 1993 (NVRA).

The decision reasoned:

"Once the state takes the step of identifying individuals as active voters, those individuals clearly become 'registrants' protected by the NVRA. Federal district court issued an order prohibiting the Secretary of State form enforcing this law. The court relied on the NVRA as the ruling law that determined who is a 'registrant.'" (court decision)

The court considered defendant Land's arguments then demonstrated that the totality of the Secretary's position resulted in voter disenfranchisement. Land et al argued "that court orders affecting elections may result in voter confusion and cause a chilling effect." The defendants then claimed that even if a qualified voter were rejected due to a cancelled registration, the voter would still have the option to vote on a "provisional" ballot.

The court noted that the 5,500 voters affected would hardly represent any level of voter confusion. Then the court shut the door on defendant's argument by stating that "this argument ignores Michigan law, which allows for some provisional ballots to go uncounted. In fact, in the 2006 elections, only 19.1% of all provisional ballots cast in Michigan were counted."

Judge Moore then noted that there would be no harm to voters or the general public by upholding the federal district court's injunction. The Judge allowed for expedited review by a higher court.

Michigan ACLU Legal Director Steinberg remarked:

"There are lawmakers in Michigan and elsewhere who purposely make it difficult for students to vote. This victory reaffirms the principle that

states are not free to ignore federal laws that prevent disenfranchisement."

Michigan's Former One Stop Voter Caging Program

Republican partisans use voter caging to challenge and remove legitimate voters from the registration rolls. Project Vote defines voter caging succinctly:

"Voter caging is a practice of sending mass direct mailings to registered voters by non-forwardable mail, then compiling lists of voters, called “caging lists,” from the returned mail in order to formally challenge their right to vote on that basis alone. Other methods, such as database matching, have been used more recently to compile voter caging lists. The practice is used almost exclusively by officials or members of the Republican Party, local and national." Project Vote

Voter caging programs target poor and predominantly minority voters who typically favor for Democrats by large margins.

There are clear similarities between Secretary Land's operation and voter caging conducted for political purposes. They both rely on mailings to registered voters to establish the validity of the registration based on the voter's original address in the state registration files. They both rely on the use of returned envelopes ("unforwardable") as sufficient proof that the intended recipient is not qualified to vote.

In the case of the Michigan Secretary of State's outlawed behavior, the simple event of the state receiving a returned voter registration envelope triggered the immediate removal of the voter from the rolls. Republican partisans engaged in voter caging travel a more involved path to stealing the vote from legitimate voters. They must go to the polls on Election Day to challenge voters or submit their voter lists based on unforwardable mail to local or state election official with a request that named voters be removed from the voting rolls.

The state of Michigan was a de facto and de jure one stop voter caging operation

The Michigan law and practices by elections officials were a clear violation of the National Voting Rights Act of 1993. The language of the act is crystal clear. It protects voters against "discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office and disproportionately harm voter participation by various groups, including racial minorities" (NVRA of 1993). State officials should have known better. Perhaps they did.

The unlawful treatment of voter registration in Michigan is part of a broader disregard for federal voting rights and election law. After a 2007 federal court request for ballots from the 2004 presidential election, 56 out of 88 Ohio county election boards destroyed some of all of the 2004 presidential ballots. These were to be retained according to both state and local law and a federal court order mandating retention of the ballots until further notice from the court. There was no action taken against the Ohio elections officials for their flagrant disregard for the law and a federal court order.

November 2, 2008 will push the current voting system to the wall. This election will also generate considerable legal activity. Most significantly, we will see millions of voters disenfranchised again as a result of intended or unintended actions by elections officials. It's all entirely unnecessary. Election laws are not that complicated and the process of conducting elections should be a simple one. But open, fair, and convenient voting by as many citizens as possible isn't necessarily the goal for some politicians and elections officials.

END

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