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Federal Court Asked to Strike Down Michigan’s Plan for Provisional Ballots on Nov. 2

October 1, 2004

For Immediate Release
Friday, October 1, 2004

Contact Information:
Natalia Kennedy, 212 998–6736
Sabrina Williams, 202 728–9557

Federal Court Asked to Strike Down Michigan’s Plan for Provisional Ballots on NOV. 2
Director of Elections Charged with Turning Ballots into Scrap Paper

New York, NY – A lawsuit filed today on behalf of Michigans voters asks a federal judge to stop the Michigan Secretary of State and Director of Elections from proceeding with the States plan for handling provisional ballots in the upcoming November 2 election. Tens of thousands of voters could be affected.

The complaint charges that the States plan would transform the provisional balloting scheme into a meaningless sham, presenting the voter with a decoy ballot while effectively disenfranchising him. The complaint claims that the States plan violates the U.S. Constitution and federal and state law.

Plaintiffs, the Michigan State Conference of the NAACP, Project Vote, and ACORN, claim that the plan for provisional ballots established in June by Christopher Thomas, Michigans Director of Elections, would take away the vote from two large classes of voters: (1) first time voters who face special new ID requirements on Election Day; and (2) citizens who vote in the wrong polling place.

Citizens in this second category who try to vote in the wrong polling place also are having their disenfranchisement claims advanced by the State Democratic Party in a separate lawsuit filed earlier this week. The federal court will be deciding whether and how to consolidate its review of the two complaints. A hearing in the suit filed by the Democratic Party is scheduled for October 7.

Even though Americans are now familiar with election snafus, Michigans handling of provisional ballots would shock anyone, said Wendy R. Weiser, associate counsel of the Brennan Center for Justice at NYU School. The test set by the State for giving a provisional ballot to a voter is the very same standard that prevents the ballot from being counted. Michigans Director of Elections has turned provisional ballots into nothing more than scrap paper. Citizens voting by provisional ballot are being cruelly deceived if they think they have cast a meaningful ballot. No eligible voter should be treated this way.

Federal law guarantees a right to vote by requiring provisional ballots as a fail-safe, said Judith Browne, acting co-director of the Advancement Project. Yet Michigan has made this promise an empty gesture. Were seeking just democracy.

In 2002 Congress enacted the Help America Vote Act, giving voters the right to cast a provisional ballot if they are unable to meet ID requirements or if they have gone to the wrong voting precinct. The lawsuit asks the court to instruct Michigans election officials on how to satisfy these federal safeguards.

The plan put forth in June by Elections Director Thomas states that a provisional ballot cannot be counted if the elector was unable to confirm that he or she currently resides in the precinct where the [provisional ballot] was issued. Yet, according to federal and state statutes, provisional ballots are to be the fail-safe means for citizens to vote notwithstanding the fact they have mistakenly gone to the wrong precinct.

Similarly, Director Thomass June plan states that a provisional ballot cannot be counted if the elector failed to provide photo identification or documentary proof of residence at the polls. Yet, under federal and Michigan law, provisional ballots are to be the fail-safe mechanism for voting by first-time voters who have registered by mail but arrived at their polling place without the required ID.

Yes, there is, without question, a completely absurd quality to the States plan for provisional ballots in the upcoming election, said Ms. Weiser. And making matters much worse is the fact these absurd rules will cause the greatest injury in minority and low-income precincts.

Plaintiffs are represented by the Brennan Center for Justice at NYU School of Law, the Advancement Project, Amos Williams, Esq., and the law firm of Manatt, Phelps & Phillips, LLP.

For additional information about Brennan Center efforts to promote policies that protect rights to equal electoral access and political participation, please visit the Center’s Voting and Representation page.

The Brennan Center for Justice at NYU School of Law, founded in 1995, unites thinkers and advocates in pursuit of a vision of inclusive and effective democracy. Its mission is to develop and implement an innovative, nonpartisan agenda of scholarship, public education, and legal action that promotes equality and human dignity, while safeguarding fundamental freedoms.
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