Another E-day Disaster Brewing in Ohio

October 16, 2008

Ian Urbina of the NYT reports on a very troubling decision handed down by the Sixth Circuit Federal appeals court:

More than 200,000 registered Ohio voters may be blocked from casting regular ballots on Election Day because of a federal appeals court decision on Tuesday requiring the disclosure of lists of voters whose names did not match those on government databases, state election officials and voting experts said.

According to one O-State voting law prof., the judges must have taken a whopping dose of unconstitutional before issuing the ruling:

Daniel P. Tokaji, a law professor and voting expert at Ohio State University, said he thought the appellate decision was wrong. He said the stated purpose of the “matching” requirement in the federal law, the 2002 Help America Vote Act, was to accelerate procedures at the polls, somewhat like an E-Zpass lane at highway toll plazas. It was meant to allow voters to avoid showing identification if they had already been screened using database checks, he said.

The federal matching requirement, Mr. Tokaji said, was not meant to determine eligibility, deter voter fraud or raise added barriers for voters by forcing some to vote provisionally. “The majority judges don’t seem to grasp this point,” he said.

There is a real risk of large-scale challenges of voters on Election Day, said Richard L. Hasen, a professor at Loyola Law School in Los Angeles, but he added that any effort to use the list to purge the rolls before then could violate the federal provision that prohibits systematic voter removal purges within 90 days of a federal election.

This case and the judgment are the direct result of the profoundly inaccurate “voter fraud” narratives swirling out of desperate right wing circles at the moment.

Most egregiously, the ruling has no basis in any empirical evidence that fake registrations actually lead to fraudulent votes. Absent such evidence, any effort to challenge voters at the polls or require provisional ballots is a waste of government money and citizens’ time. It also makes it that much more difficult for vulnerable populations (the folks most likely to be challenged on the basis of poorly maintained federal database information) to exercise their rights and responsibilities on election day.

On a separate note, I’m curious if there’s any research out there that looks at whether the number of legal challenges related to voting laws is significantly higher in swing states/districts.

My untutored suspicion is that courts in sensitive regions are being abused on this issue and are being asked to devote a disproportionate amount of time and resources to refereeing a partisan tug of war.

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