Decisions About Ohio Voters Left to State’s Secretary of State (For Now)
Section 303 of the 2002 Help America Vote Act requires states to verify voter registration applications with government databases like those for driver’s licenses or Social Security cards. Recently, Ohio election officials found that although 200,000 out of the 600,000 applicants did not match the names in Social Security databases, most of the nonmatches involved new voters, not duplicate registrations, whose failure to match resulted from problems with the databases. Republican GOP officials responded to this finding by seeking a temporary restraining order that would require Ohio Secretary of State Jennifer Brunner to provide those names to local election officials who would then insist that the identified voters cast provisional ballots, rather than regular ones, and ask partisan poll workers to challenge their votes on Election Day. On Tuesday, the Sixth Circuit affirmed a district court’s TRO granting the relief sought by GOP officials. But yesterday the Supreme Court, in a per curiam order, reversed the Sixth Circuit, finding that the district court likely lacked jurisdiction in actions to enforce Section 303 of HAVA brought by private litigants. The Court declined to address “whether HAVA is being properly implemented.”
These developments raise a number of important questions. First, can a public actor, such as Attorney General Michael Mukasey, enlist the courts to answer the question of whether Ohio’s Secretary of State correctly implemented HAVA? Orin Kerr at the Volokh Conspiracy thoughtfully suggests that such an actor should not be permitted to do so as the Supreme Court’s per curiam decision follows the logic of Bush v. Gore that “[w]hen elections are close, or a winner must be named in a recount, courts should stay out and let the state election boards function without judicial inteference.” Second, if a court addresses the issue on the merits, does Section 303 of HAVA support the district court’s original TRO? Daniel Tokaji answers in the negative, explaining that HAVA’s matching requirement aimed to accelerate procedures at the polls, somewhat like an E-Z pass lane at highway poll plazas, to allow voters to avoid showing identification if they had already been screened using database checks, not to determine eligibility, deter voter fraud or raise added barriers for voters by forcing some to vote provisionally. Richard Hasen further explains that “any effort to use the list to purge the rolls at this point could vioate the federal provision that prohibits systematic voter removal purges within 90 days of a federal election. Third, are the automated decisions flagging individuals as failing to match Social Security and DMV records reliable? The answer there is unquestionably no. As Wendy Weiser of the Brennan Center for Justice at NYU Law School explains, nonmatches result from faulty information in databases and typographical errors by government officials, not voter ineligibility.
A final concern about voter registration that the Ohio case does not directly raise, but is no less important, is the erroneous removal of voters from the rolls by automated matching programs that cannot distinguish between similar names. As I highlighted in my article Technological Due Process recently published by the Washington University Law Review, data matching systems employ crude algorithms that can lead to mistaken results. Unfortunately, individuals who show up to the polls on November 4 may find their names removed from the voting rolls because their name is similar to someone who is in fact ineligible due to a move, death, or criminal conviction.
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