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Update: Ohio Removes Vote Caging Possibility

• September 05, 2008 • 12:00 PM

Ohio directive issued Friday says 60-day notice can’t be used to challenge voters.

UPDATE: Ohio Secretary of State Jennifer Brunner took decisive action on Friday to clarify and amend the state’s voter challenge law with particular aim at a contentious statewide mailer, which Miller-McCune.com reported Friday, the same day the notices went out and Brunner issued her directive. (The original Miller-McCune.com story, which appeared under the headline “Nearly 600,000 Subject to Possible Caging in Ohio,” appears below.)

In the Sept. 5 directive to county boards of elections, Brunner said that no voter shall lose the right to vote based solely on the state’s 60-day non-forwarded notice having returned to election officials as non-deliverable. Voter rights advocates worry that the returned notices would give Republicans the means to level mass challenges against thousands of Ohio voters similar to what occurred in 2004.

It remains unclear whether the non-deliverable notices could be used in part to challenge voters along with other indicators.

Brunner acknowledged returned mail does not provide a reasonable basis for proving someone moved. She also indicated her belief that returned notices often disproportionately impact the poor and minorities.

In addition, “Secretary Brunner contends that Ohio’s 2006 voter registration challenge law is legally and constitutionally deficient because the statute allows a board of elections to cancel a voter’s registration, depriving a voter of the right to exercise his or her vote without first providing due process required under the U.S. Constitution,” according to a press release issued on Friday.

The release goes on to say, “The directive requires: providing every challenged voter with notice and an opportunity to be heard; holding a public hearing on all challenges; and holding all hearings prior to Election Day.”

Brunner also called on legislative leaders to amend the law based on her directive.

Incidentally, one of the provisions of the National Voter Registration Act require election divisions to send voters a prepaid, preaddressed return service card that is sent by forwarded mail.

* * *

Ohio election officials are sending out a mass mailer stamped “do not forward” to all registered voters today (Sept. 5) with an absentee ballot application and other important notices for Nov. 4.

What’s important here is not so much what’s going out as what’s being returned to sender.

Unbeknownst to the would-be recipients, the same mailer — just 60 days before the election — has the potential to determine their eligibility to vote, challenged not by election officials but by partisan opposition.

A similar mailer in March netted nondeliverable mail from almost 600,000 registered voters in just five Ohio counties who could now have their ballots thrown out for voting under the wrong address.

The National Voter Registration Act prohibits any state from purging names from the voting rolls within 90 days of an election.

The law doesn’t, however, preclude mass partisan challenges on or shortly before Election Day — known as voter caging — based on the same returned envelopes from state-sponsored mailers like the ones in Ohio and others going out across the country.

In 2004, the year the national election hinged on results from Ohio, the Ohio Republican Party challenged 35,000 voters based on returned mail from the GOP’s own friendly reminder notices. From 2004 to 2006, Republicans challenged 77,000 voters this way nationwide. A consent decree issued in 1982 and amended in 1987 enjoins the GOP from instituting “ballot security programs” that focus on minority voters.

No evidence so far suggests Republicans — vote caging is essentially a GOP sport — have mounted a caging campaign this year. Yet, in July, Franklin County Election Director and County GOP Chairman Doug Preisse told reporters he didn’t rule out challenges before November, particularly because of increased home foreclosures, which would make failures to change address on voter registration records more common.

A challenged voter will likely cast a provisional ballot, which often requires voters to return to election divisions to prove their identity and address. Nearly a third of all 1.6 million provisional ballots cast in 2004 were thrown out.

Voting-rights groups don’t oppose voter-roll housekeeping, but they cite the federal law as evidence that executing it so close to the actual election isn’t fair.

The fraud that voter caging purportedly roots out is relatively rare, although vote solicitors working for the liberal group ACORN, the Association of Community Organizations for Reform Now, in 2004 and again this year were accused of submitting false registration forms. Ohio is one of five states where ACORN employees have been investigated and, in some instances, jailed over submitting false voter registration forms.

Unrelated to ACORN, the Web site GOP.com cites two voting-fraud court cases in Ohio, both focused on individuals casting a second ballot intentionally.

On Nov. 1, 2004, voter-rights groups reacted and challenged the partisan caging in Ohio all the way to the U.S. Supreme Court in just two days but lost in a final-hour appeal. This year, they want to be as proactive as possible, said Donita Judge, Ohio staff attorney for the nonprofit Advancement Project.

“A single returned piece of mail is not a reliable basis for challenging the right to vote,” Judge said. “Mail may be returned for many reasons, including errors in the database from which the mailing is derived, errors in the mailing labels, failure to include an apartment number or poor matching criteria.”

Since 2005, Ohio state law has required a non-forwarded mailer 60 days before each federal election. The suspicious part about the law, Judge said, is that it’s set to expire after the November election.

But it’s not all about throwing votes out. Another aspect of Ohio’s reformed election law is that it opens a window between Sept. 30 and Oct. 6 when voters can register one minute and cast a ballot the next.

That’s generally seen as a benefit for Democrats this year since the new registrations refer mainly to 400,000 or so resident college students in Ohio. Obama holds a 2-to-1 lead over McCain among 18- to 34-year-olds, according to a Washington Post-ABC News poll released last month.

Following a statewide mailer similar to the one going out today, before the Ohio primary in March, the Advancement Project obtained the lists of returned notices through simple public records requests. The organization requested records from five urban Ohio counties — Cuyahoga, Franklin, Hamilton, Lucas and Summit.

The total came to 600,000 names out of 3 million voters, amounting to 19.7 percent of all registered voters.

Sally Krisel, director of the Hamilton County Board of Elections, said the high percentage was misleading because the mailer in her county included those on the inactive voter roll. Considering only active registered voters, the county received about 5 percent returned in March, she said.

Inactive voters, tagged for possible removal, are given two years to cast a ballot before they can be removed from the rolls. None of the returned, 60-day notices are used for that purpose, Krisel said.

“We have not purged anybody this year,” she said. “In big counties, we’re often carrying a lot of inactive voters.”

In Franklin County, the March mailer went to all registered voters as well. Out of 780,000, more than 150,000 notices were returned. Those voters are now excluded from receiving another notice this week, said Ben Piscitelli, spokesman for the Franklin County Board of Elections. The only public records request for the list so far came from the Obama campaign, Piscitelli said.

Meanwhile, the sweeping Ohio election law loosens the rules around challenging voters. It also strips much of the ability of voters to know they are being challenged and defend their right to vote before an election judge.

See Miller-McCune’s previous reporting in May on amendments to the Ohio challenge law and other coverage of the Ohio 2004 election.

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David Rosenfeld
David Rosenfeld is a freelance journalist based in Portland, Oregon with 10 years of experience writing for newspapers. He writes primarily about health care, conservation and the changing world around us.

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