ACLU Urges DOJ to Refrain From Probing Ohio Voter Issues

The American Civil Liberties Union has asked the Department of Justice to reject a White House request to review the eligibility of at least 200,000 newly registered voters in the battleground state of Ohio.

In a letter sent to Attorney General Michael Mukasey on Tuesday, ACLU Executive Director Anthony Romero said, “with the election one week away, this kind of intrusion represents partisan politics at its worst.”

“In addition, challenging — or purging — lawfully registered voters in the days before the election invites chaos and undermines the integrity of the democratic process,” Romero wrote.

More than six million Ohioans are expected to vote on Nov. 4, and absentee ballots are expected to represent one-third of total voter turnout, state election officials said Monday.

Ohio’s 20 electoral votes could be crucial for McCain to achieve a comeback victory over his Democratic rival, Sen. Barack Obama, who is leading in Ohio by five to seven percentage points, according to most polls.

At issue now is a federal law – the Help America Vote Act, which was passed when Republicans dominated Congress in 2002 – that requires states to verify the eligibility of voters.

The Ohio Republican Party filed a lawsuit last month against Ohio Secretary of State Jennifer Brunner, a Democrat, claiming that voter registration information for hundreds of thousands of new voters did not match official government data, such as Social Security records and driver’s licenses.

But in court filings, GOP officials did not provide documentary evidence to back up those claims. Voting advocates also note that many mismatches can be irrelevant, such as the use of a middle name in one form but not another or a typographical error in a database.

Still, Republicans faulted Brunner for her “steadfast refusal to provide the HAVA ‘mismatch’ data to the county boards of elections in a meaningful way.” They accused Brunner of violating federal election laws by “actively working to conceal fraudulent activity.”

Brunner said the lawsuit was “politically motivated” and could result in disenfranchisement of voters because of “misstated technical information or glitches in databases. …

“Many of those discrepancies bear no relationship whatsoever to a voter’s eligibility to vote a regular, as opposed to a provisional, ballot,” Brunner said, adding that mismatches “may well be used at the county level unnecessarily to challenge fully qualified voters and severely disrupt the voting process.”

Romero said the “suggestion that voters should be denied the right to vote based on the inability of election and driver license officials to establish a match between differing data bases is without support under federal civil rights law and the U.S. Constitution,” Romero wrote. “The removal of voters based upon mismatched information at this late date would violate other federal statutes and constitutional provisions governing federal elections, including the National Voter Registration Act of 1993…the Civil Rights Act of 1964…and the First and Fourteenth Amendments of the United States Constitution.”

Two weeks ago, the U.S. Supreme Court overturned a lower court’s ruling that had favored the Republicans. The high court said lawsuits “brought by a private litigant” could not be used to force states to abide by federal laws.

Rep. John Boehner, R-Ohio, then sought, via a letter he sent to President George W. Bush last week, to have Mukasey force Brunner to comply with HAVA’s requirements.

“Unless action is taken by the [Justice] Department immediately, thousands, if not tens or hundreds of thousands of names whose information has not been verified through the [Help America Vote Act] procedures mandated by Congress will remain on the voter rolls during the Nov. 4 election. …

“There is a significant risk if not a certainty, that unlawful votes will be cast and counted. Given the Election Day is less than two weeks away, immediate action by the Department is not only warranted, but also crucial.”

Bush forwarded Boehner’s request to Mukasey and asked that he probe the matter to determine whether newly registered voters should either verify the information on their registration forms or cast provisional ballots, which are often thrown out after the voter leaves the polling place.

Sen. Sherrod Brown, D-Ohio, and five congressional Democratic lawmakers from Ohio, also wrote to Mukasey urging him not to intervene in the dispute.

“The eyes of the nation are once again on Ohio in the Nov. 4 election in this critical election,” Brown and the congressional Democrats said in a letter sent to Mukasey last week. “We have confidence in the work that is being done by Ohio’s bipartisan group of election officials and by Ohio Secretary of State Jennifer Brunner. We respectfully request that you refrain from taking any action absent more compelling evidence than partisan political requests.”

The DOJ has not indicated whether the agency will launch a probe or whether it has already started to review the issue.

Federal intervention – if ordered by Mukasey – could wreak havoc at polling places across Ohio, with Republican operatives using data on mismatches to challenge thousands of voters and causing long lines in Democratic strongholds.

Federal investigative guidelines, however, discourage election-related probes before ballots are cast because of the likelihood that the inquiries will become politicized and might influence the election outcomes.

“In most cases, voters should not be interviewed, or other voter-related investigation done, until after the election is over,” according to the Justice Department’s guidelines for election offenses.

Moreover, independent studies have shown that phony registrations rarely result in illegally cast ballots because there are so many other safeguards built into the system.

For instance, from October 2002 to September 2005, a total of 70 people were convicted for federal election related crimes, according to figures compiled by the New York Times last year. Only 18 of those were for ineligible voting. In recent years, federal prosecutors reached similar conclusions despite pressure from the Bush administration to lodge “election fraud” charges against voter registration groups seen as bringing more Democratic voters into the democratic process.

Romero, the ACLU’s executive director, said, “despite the lack of any credible evidence of voter fraud, the White House continues to pursue this probe.”

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