The Work

September 24, 2008 1:30 PM

ELECTION 2008: Wisconsin Judge Rules AG Can Sue State's Election Board

Posted by Daphne Eviatar

Update at 5:10 p.m., 9/24/08: Dane County Circuit Court Judge Maryann Sumi ruled this afternoon that Wisconsin's Attorney General can sue the state's Government Accountability Board over its implementation of the Help America Vote Act.

When Congress passed the Help America Vote Act (HAVA) in 2002, it aimed to clean up the country's patchwork of voter registration rules. But as an unusual suit to be argued Wednesday in Wisconsin shows, the question of who gets to cast a ballot is still a contentious one.

In the Wisconsin suit, state attorney general J.B. Van Hollen is suing the state's Government Accountability Board. The nonpartisan board--composed of six former circuit court judges--is responsible for overseeing HAVA's implementation in Wisconsin.

Van Hollen claims the board has violated the federal law by failing to require that identifying information supplied by voters when they initially registered in their counties matches the identifying information contained in a new statewide voter database. That information is drawn from motor vehicle records, social security numbers, and the like.

"The statewide computerized voter registration list required by HAVA includes thousands, if not tens of thousands, of names whose information has not been verified through the HAVA checks mandated by Congress and required by state law," Van Hollen said when he filed the case. "Unless action is taken by the Wisconsin Government Accountability Board, these names will remain on the list during the November 4, 2008, presidential election, and there is a significant risk, if not a certainty, that unlawful votes will be cast and counted."

HAVA requires each state to create a computerized statewide voter registration list such as the one at issue in Van Hollen's suit. The law does not specify, however, whether information on already-registered voters must match the information in the newly constructed databases. And for good reason. States requiring such a match have found that an extraordinarily high percentage of voter information used to register individuals locally does not match state-created database. A name change or the addition of a hyphen, for example, kills a match. So do typos and other clerical errors made when inputting information into the database.

According to the Wisconsin board being sued by Van Hollen, the identifying information for 22 percent of the state's registered voters--about 1 million voters--does not match the information in the state database. Van Hollen's critics argue that determining whether those voters are nonetheless legitimate is too big a job for local officials at this point.

"[Y]ou expect municipal clerks to clean all this up? It's just physically impossible," says Joe Wineke, chairman of the Wisconsin Democratic Party, which has moved, as has the Republican Party, to intervene in the suit. As Kevin Kennedy, director and general counsel of the board wrote to Van Hollen in August: "To immediately require that every voter registered since January 2006 be matched against the state database could lead to mass confusion at the polls."

No matter. On September 17, the attorney general--a Republican and the state cochair of John McCain's presidential campaign--moved to compel Wisconsin's municipal and county clerks to cross-check voter registration lists dating back to January 1, 2006, against other state databases. (According to the Wisconsin Journal-Sentinel, a senior attorney on Van Hollen's staff met with Republican lawyers about the issue before his boss filed the suit.)

As with similar challenges pending in Florida, Michigan, Ohio, and other states, Van Hollen's challenge comes down to a two-party fight in key battleground states. Republicans say that by moving to enforce HAVA provisions, they aim to combat widespread voter fraud that could undermine the legitimacy of the upcoming election. Democrats, meanwhile, argue that voter fraud is rare, and that by-the-book efforts to verify voters' identities do more harm than good by keeping legitimate voters away from the polls.
Studies have shown that the poor, elderly, and minorities are disqualified and thereby deterred from voting far more than other populations.

In Florida, the NAACP, represented by the Brennan Center for Justice with pro bono help from Paul, Weiss, Rifkind, Wharton & Garrison and Greenberg Traurig, sued the state for requiring exactly what Van Hollen wants: that registered voters' information match that in the new state database. In 2006, more than 20,000 Floridians' registration applications were delayed or denied because of matching problems. As of February 2007, the Social Security Administration could not match 46.2 percent of the 2.6 million voter registration records submitted to the agency from across the country.

Last December, a federal district court granted the plaintiffs' motion for preliminary injunction, but the Eleventh Circuit Court of Appeals reversed. Florida recently announced it will implement a slightly amended version of its law.

A similar lawsuit in Washington, where 30 percent of voters in the state's largest county did not match the database, settled after the court enjoined the state's matching rules last year.

Before Dane County circuit court judge Maryann Sumi even reaches the substance of the attorney general's claims in Wisconsin, however, she'll have to consider a threshold question, to be argued today: Ethically speaking, can the attorney general even bring the suit, given that he's the board's lawyer--and already defending it in three other lawsuits?

"The board's position is that until the issue of disqualification is decided we should not have to address any substantive matters," says Lester Pines, who filed a motion of behalf of the board to disqualify Van Hollen. "We should not have to lift a finger to defend a lawsuit brought by our own lawyers."

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What a coincidence that the man bringing the lawsuit just happens to be a Republican and the state co-chair for the John McCain campaign. I guess he's not so confident that McCain can win this election on his own merits and might need to keep some people out of the voting booth. That is reprehensible.

So, being that I am a college student and move frequently, my address with the DMV is certainly not my current address. I have been in Madison, however, since 2004. Does this mean I HAVE to go pay to update my driver's license in order to be a legitimate voter? They may as well mandate an expiration of driver's licenses every election year then.

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