Rights Groups: Jumble of State Laws Could Disenfranchise Voters

By Catherine Komp
The NewStandard

Thursday 02 November 2006

A maze of state voting policies has public-interest advocates concerned that mass confusion will erupt next week at the polls, potentially resulting in actual and "de facto" disenfranchisement of voters.

New statewide databases, voter purges, a patchwork of policies governing "provisional ballots," and rapidly changing identification requirements could cause problems in many states with close races, voter-rights groups say.

Groups including the public-interest organization DEMOS and New York University's Brennan Center for Justice say implementation of provisional ballots – designed for individuals who are not found on a list of registered voters – has been flawed. Provisional ballots are meant to ensure all those who are eligible can vote, even if a voter list is erroneous or if an elections official challenges a voter's eligibility.

Provisional ballots were mandated under the 2002 Help America Vote Act (HAVA). The law states that elections officials "shall notify" an individual of their right to cast a provisional ballot. State or local election officials are then charged with "prompt verification" of the voter's eligibility. Voters are entitled to find out whether their ballot was counted, with states providing online or telephone verification systems.

Scott Novakowski, policy analyst with DEMOS, said vague language in HAVA has given states wide latitude in determining how provisional ballots will be counted. Novakowski told The NewStandard that many voters may falsely believe that just by casting a provisional ballot, their vote will be counted.

A study commissioned by the federal government found that some 675,000 provisional ballots cast during the 2004 general elections were not counted. The most common reasons for a rejected ballot included: individuals were not registered, were in the wrong precincts, had improper IDs, or turned in an incomplete ballot form.

The 2004 Election Day Survey, conducted by the consulting firm Election Data Services for the federal Election Assistance Commission, noted that HAVA's "ambiguity" has led to different interpretations of where a voter can cast a valid provisional ballot. In 2004, researchers counted that in 25 states, provisional ballots were disqualified if not cast in the voter's "home precinct."

As more states adopt "consolidated" polling places, in which multiple precincts are located in the same building, groups say there are increased chances that voters may cast a ballot in the wrong place, and have their vote invalidated.

In South Dakota, one of the states that rejects provisional ballots cast in the wrong precinct, there are 658 polling places serving 818 precincts, according Chris Nelson, South Dakota's secretary of state. Nelson told TNS that if a voter insists they are voting in the right place and uses a provisional ballot to cast their vote, it will only be counted if auditors "can find the voter registration form that the voter claims he filled out to be registered in [that] precinct."

James Lee, spokesperson for the Ohio Secretary of State, confirmed that some Ohio counties will also have multiple precincts in one polling location, though he could not say how many. He said Ohio will reject provisional ballots cast in the wrong precinct to prevent people from voting "for candidates and issues for which the voter is not entitled to vote."

According to the Election Assistance Commission's 2004 survey, 18 states, including California, Arizona, Colorado and Pennsylvania, will count provisional ballots even if cast outside of a voter's registered precinct.

Groups also point to problems with new statewide voter-registration databases, mandated by HAVA to be in place by January 1, 2006. Many are being implemented for the first time this year. The databases, a centerpiece of HAVA, were meant to create a more accurate, uniform voter list to replace the multitude of rolls maintained at the county level.

But in the rush to meet federal deadlines, many states implemented their new database technology haphazardly, according to Justin Levitt, counsel with the Brennan Center for Justice. The Center conducted a national survey last March on states' new database systems.

Levitt warned that voters' information may be removed or wrongly entered as states consolidate their voter rolls into new databases.

"Because these databases are new, often the policies that govern how they are used are informal – or worse, spur of the moment," Levitt told TNS, adding that most states have not codified database practices into law, making it difficult to ascertain what states are actually doing as they create these centralized voter lists.

The exception is Washington state, which implemented a formal "no match, no vote" law in January 2006. The system required the state to match voters' registration to their motor vehicle, state identification or social security records. If the automated database system found no match, the voter would be disqualified unless the applicant resolved the discrepancy.

On behalf of a coalition of community groups, the Brennan Center challenged the law in federal court last May as an "illegal precondition to registering the state's voters."

"This brand new bureaucratic obstacle to voter registration will illegally disenfranchise thousands of eligible Washingtonians," wrote the plaintiffs. "'Matching' personal information in different databases is an error-prone process that is notoriously unreliable in the elections context."

The suit states that typos and data-entry errors are common scenarios that, by no fault of the eligible voter, could result in a failed "match" in the system. Examples of errors include omitting an "e" at the end of "Locke" or misspelling "Reid" as "Reed." The suit also cites mistakes entering information into database fields, especially with compound last names or Asian names, in which the surname is listed before the given name.

A judge agreed with the plaintiffs in Washington and temporarily blocked implementation of the law in August. In response, several states with similar rules dropped or changed them, including California, where the LA Times reported that 43 percent of people who registered to vote in Los Angeles County during the first quarter of 2006 were deemed ineligible by the state's new database system.

But voting rights advocates are concerned that a few states may still be using a version of "no match, no vote." According to Ohio Secretary of State's spokesperson Lee, while there is no state-wide policy, individual county boards of elections will set rules to determine if a registration is eligible based on matches with information in other state databases.

Lee added, "Would that disqualify a voter as a matter of fact? Probably not. It simply is a way for county boards of elections to better manage their lists."

Officials from both South Dakota and North Carolina told TNS that though they use a matching system to verify a voter's registration, they also take measures to correct data-entry mistakes or contact voters if there is a discrepancy.

The Brennan Center also cautions that some eligible voters may be swept up in voter-roll "purges" or "cleaning," which is also required by federal law. The Center's Levitt said while cleaning lists is necessary to remove people who have moved or passed away, "if states are sloppy about it, there can be real problems with purging eligible voters."

In one recent case, Kentucky's Attorney General Greg Stumbo filed suit against Secretary of State Trey Grayson after the state purged more than 8,000 people from the centralized state voter database rolls last April. The judge in the case found that the systematic removal had more than a 10 percent error rate, eliminating hundreds of eligible voters.

"The other big problem," said Levitt, "is that most of this happens out of public light. There's very little publicity behind most voter purges and very little disclosure of the lists being used … Without someone double checking the work that's been done, triple checking [the work], it's possible that entirely benign mistakes can end up disenfranchising eligible voters."

Groups predict there will be fewer problems in states that have same-day registration, including Idaho, Maine, Minnesota and Wisconsin, as citizens can simply re-register if they have been omitted from the voter rolls. In North Dakota, voters do not have to register in advance of an election at all.

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