Van Hollen v. Government Accountability Board

In Brief – In Van Hollen v. Government Accountability Board, the Wisconsin Attorney General, J.B. Van Hollen, claims the state’s Government Accountability Board (GAB) is violating the 2002 Help America Vote Act (HAVA) by refusing to retroactively run database matches on voters who registered before Wisconsin’s database had the capacity to perform database matching.  

The complaint was filed on September 10, 2008 in Dane County Circuit Court. On October 6, 2008, the Brennan Center and a coalition of other voting rights groups (the “amici”)  filed an amicus brief in support of the GAB’s motion to dismiss.

The amici explained that the Attorney General interpretation of HAVA was incorrect:  not only does HAVA not compel retroactive matching, it prohibits it.  Moreover, retroactive matching is a bad idea from a policy perspective; it would create confusion at the polls and disenfranchisee eligible voters.

In Detail – In July Wisconsin’s Government Accountability Board (GAB) considered and rejected a proposed amendment to its administrative rules that would have required all voters without a successfully completed “HAVA match” to vote provisional ballots if they did not present proof of residence at the polls. These provisional ballots would have been counted only if voters presented proof of residence to election officials by 4:00 p.m. on the day following the election. The rule evidently would have been applied to all voters, not just first-time, mail-in registrants.

But after tales of voter fraud and illegal registration surfaced, the GAB decided to reconsider a “no match, no vote” proposal in late August.

In response, on August 25, 2008,  the Brennan Center and Ohio State Law Professor Daniel Tokaji submitted a joint letter to the GAB explaining that the proposed rules were not required by HAVA and could result in a significant number of Wisconsin voters having their votes not counted in November—potentially as many as 22% of new registrants.  The GAB again rejected the proposals.

After the GAB wisely rejected the onerous matching policy a second time, the state’s Attorney General, J.B. Van Hollen, filed suit on September 10, 2008 in Dane County Circuit Court, Wisconsin. Van Hollen claimed that the GAB’s policy on matching violated HAVA, and demanded that the GAB conduct retroactive matches on voters who’d registered as early as January 1, 2006.

The Brennan Center for Justice and a coalition of voting rights organizations—the Lawyers’ Committee; the Campaign Legal Center; the League of Women Voters of Wisconsin Education Fund; the Voting Rights Project of the American Civil Liberties Union; the American Civil Liberties Union of Wisconsin Foundation, Inc.; Fair Elections Wisconsin; and Ohio State University law professor Daniel P. Tokaji—filed an amicus brief explaining that the Attorney General is incorrect in his interpretation of HAVA. First, HAVA does not require database matching to determine whether registration applicants are eligable to vote. Second, HAVA imposes specific restrictions to ensure eligible, registered voters are not mistaken removed from the rolls. Most significantly, implementing Van Hollen’s plan would disenfranchise eligible voters and lead to chaos and confusion on Election Day.

Incorporating numerous arguments made in the Brennan Center’s amicus brief, on October 23, 2008, Judge Maryann Sumi dismissed all claims brought by Van Hollen. Notably, Judge Sumi rightly concluded that nothing HAVA requires states to condition a voter’s eligibility to vote on a successful database match. She also concluded, correctly, 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.”

Van Hollen immediately stated that he would appeal the dismissal order. Before any meaningful actions had been taken on appeal, however, he reversed course and dropped the appeal after the GAB implemented a policy that would conduct certain retroactive matching, while protecting Wisconsin’s voters from disenfranchisement by typo.

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Selected Legal Documents

• Permission to File Amicus (10/15/08)
• Amicus Brief Supporting Defendants Motion to Dismiss (10/06/08)
• Decision (10/23/08)
• GAB Protocal (01/15/09)
• Voluntary Dismissal (01/20/09)