A Good 24 Hours in the Fight Against Disenfranchisement by Typo

From the editorial page of the New York Times to the Colbert Report, voter data matching is the story of the moment. And in the last 24 hours, there has been some very good news...

October 23, 2008

Over the past few weeks, there's been an increasing amount of press coverage focusing on the fear that voters could be disenfranchised this year because of typos and other trivial errors that prevent voter records from matching with other government records, like the motor vehicle or Social Security databases.  From the editorial page of the New York Times to the Colbert Report, voter data matching is the story of the moment.  And in the last 24 hours, there have been two significant developments that make it less likely disenfranchisement-by-typo will have a significant effect on Election Day.

In Wisconsin this morning, Judge Maryann Sumi dismissed all claims in a case brought against the state's elections agency by the Wisconsin Attorney General.  We've written about this case before, and why it was troubling:  if the court hadn't thrown out the Attorney General's case, it could have put between 53,000 and 200,000 Wisconsin Voters at risk of having to vote provisional ballots. And, historically, as few as 30%of provisional ballots cast in Wisconsin actually get counted. 

In rejecting the Attorney General's arguments, the court correctly reached two important conclusions (among other reasons for tossing the case).  First, it rightly concluded that nothing in the Help America Vote Act (HAVA) requires states to condition a voter's eligibility to vote on a successful database match - an argument we pressed in our amicus brief.  Second, the court concluded that denying a voter's right to have their ballot counted because of a typo or data entry error made by a government clerk violated Section 1971 of the Voting Rights Act, the so-called "materiality provision." (A federal court relied on that law, which provides that no voter can be denied the right to register or vote based on a mistake that's not material to determining the voter's eligibility, in striking down Washington State's strict no match, no vote law when we challenged it in 2006. More recently, we argued that the materiality provision prohibited rejecting an Ohio voter's request for an absentee ballot just because the voter failed to mark a superfluous check-box.)

Although the Attorney General has said he'll appeal the court's ruling, the decision was absolutely correct on the merits, and we are hopeful that the appellate courts won't waste any time before affirming the dismissal.  That way Wisconsin election officials will be able to get back to the important business of ensuring a smooth election.

There was also good news late yesterday in Ohio.  There, Secretary of State Jennifer Brunner issued two directives that will ensure that typos and clerical errors won't disenfranchise Ohio voters.  The first directive provided that no Ohio voter may be challenged at the polls solely on the basis of a discrepancy between data the voter provided when registering and information in the motor vehicle or Social Security database.  The second directive made clear that no absentee ballot may be rejected (or not counted) solely on the basis of such a data mis-match. 

These directives are necessary to protect more than 200,000 Ohio voters from facing unfounded challenges at the polls or having to vote provisional ballots that might not count.  That prospect arose when the Ohio Republican Party sued the Secretary of State for a list of the 200,000 un-matched voters - presumably in order to challenge their eligibility.  Fortunately, the United States Supreme Court threw the case out of federal court last week.  And though a similar case was promptly filed in state court, the plaintiff eventually withdrew the case voluntarily - maybe because he eventually realized he had no case.

While additional issues will inevitably arise in the next week and a half as we approach the election, the victories in Wisconsin and Ohio mean that voters in those states shouldn't have to worry that their votes won't count because a government clerk mis-typed their name when they registered to vote.  That's very good news.