Gotcha! With Voting Rights

Updated.. Ohio's Secretary of State recently announced that election officials should reject absentee ballot requests....

October 2, 2008

Update (4:30pm): Ohio Supreme Court unanimously rules to require election officials to accept the absentee ballot requests.

mailerOhio's Secretary of State recently announced that election officials should reject absentee ballot requests sent by thousands of registered voters whose eligibility is not seriously in doubt. The rejected voters used an absentee ballot request form created by the McCain campaign but did not check an unnecessary box on the form. The box in question, which looks like a bullet point, appears next to the following bold-face statement on the top of the form: "I am a qualified elector and would like to receive an Absentee Ballot for the November 4, 2008 General Election." Most readers would interpret this as meaning that filling out the form and signing the card constitutes an affirmation that the applicant is a "qualified elector" who "would like to receive an Absentee Ballot." And indeed, that's how thousands of Ohio voters, many elderly, interpreted the form. But not the Secretary of State.

Ohio law makes clear that absentee ballot applications "need not be in any particular form." But according to a memo the Secretary of State issued on September 5, if a voter did not check the box in question, then the voter did not affirm that she is a qualified elector and her request must be rejected. Never mind the fact that the voters who filled out the ballot request card clearly intended to indicate that they are qualified. And never mind the fact that election officials can look up each applicant on the state's database of all qualified voters who are registered in Ohio. According to the Secretary of State's memo, the question of the voters' qualifications to receive a ballot turns on whether they interpreted a form the same way she does.

This is not the first time we have seen election officials play "Gotcha!" with voters, denying them the right to register or to vote based on minor errors in paperwork that have nothing to do with their eligibility.

  • Just four years ago, Ohio's previous Secretary of State made headlines when he announced that the state would refuse to register any voter whose voter registration form was not submitted on "white, uncoated paper of not less than 80-pound test weight," even though the state itself did not print voter registration forms on such paper.

  • A few weeks ago, Florida announced that it will refuse to register voters unless election officials successfully match their voter registration records with data in driver's license or Social Security databases, using an error-prone process that has already blocked thousands of voters because of typos and other trivial errors.

  • The Wisconsin Attorney General recently filed a lawsuit trying to force the state to remove voters from the rolls in Wisconsin based on a similar match process that fails 22% of the time because of the same kinds of typos and irrelevant differences.

  • In 2004, Florida and several other states rejected thousands of voter registration applications if voters didn't check boxes saying that they were citizens over 18, even though later in the application, they gave their birthdays and signed an oath swearing to be eligible citizens.

Back in the Jim Crow days, efforts to knock out voters because of irrelevant paperwork mistakes were rampant. In fact, this was one of the techniques used to prevent the full enfranchisement of African Americans. In the early 1960's, Congress tried to put an end to these kinds of shenanigans, prohibiting officials from denying anyone the right to vote based on any immaterial "error or omission on any record or paper relating to any application, registration, or other act requisite to voting."

Today, the Brennan Center for Justice—along with the ACLU of Ohio and Professor Daniel Tokaji—filed a brief urging the Ohio Supreme Court to enforce federal voting rights law and order the state to accept the absentee ballot forms in question. Hopefully, the court will send a message that voters' rights are not to be trifled with. Imperfect paperwork and other technical hurdles are no excuse for disenfranchisement.