Voter Rights Victory in Ohio – Voter ‘Caging’ Effort Declared Unconstitutional

Herald - Dispatch (Huntington, West Virginia)

September 7, 2008, Columbus, Ohio (AP) – Republicans passed an unconstitutional law when they allowed Ohio counties to cancel a voter’s registration solely because some election notices mailed to a home address come back undeliverable, the state Democratic elections chief said Friday.

Voters must be given a chance to respond ahead of the Nov. 4 election to avoid potentially disenfranchising them, Secretary of State Jennifer Brunner said in a directive issued to county boards of elections. The problem could be as simple as a typo on the home address or a mail delivery error, she said.

Voting rights groups have argued that the tactic of challenging voters based on returned mail singles out the homeless, who may not have a mailing address — or change addresses frequently — and others living away from home, such as soldiers and college students.

Brunner said her directive challenges a law passed by the Republican-controlled Legislature in 2006 that gives counties the authority to cancel registrations on any undeliverable election notice without giving voters due process.

A review conducted by her lawyers found that the state law violates federal voting rights laws and the U.S. Constitution, making Ohio counties vulnerable to lawsuits should they use the returned mail as the sole reason for canceling a registration, Brunner said.

Undelivered election notices become public records when they are returned to county boards of elections. A political party could then file a public records request and challenge those voters’ eligibility, especially in precincts where the opposite party has a majority. The process is known as “vote caging.”

The 2006 law enables local election officials to side with the challengers before giving the voters a chance to respond, Brunner said.

Brunner said the law appears to have sprung from Republican attempts in 2004 to challenge voter registrations based on returned mail. She said the law specifically says that the election notice must not be forwardable mail, which keeps it from being delivered, for example, when a voter places a hold on mail while away on vacation.

“When you line it all up you see a very flawed process that can put many people’s rights in jeopardy,” Brunner said. “I’m not sure what the motivation was and who drafted it. All I know is it’s not likely to stand up in court.”

A telephone message seeking comment was left with state Rep. Kevin DeWine, the Republican sponsor of the voter registration law and the deputy chairman of the Ohio Republican Party.

The Advancement Project, a Washington, D.C.-based legal action group committed to racial justice, had told Brunner that it planned to sue the state if elections officials followed the 2006 law. Brunner said she told the organization that her own legal analysis had discovered flaws in the state law, and that she would instruct elections officials that they must give voters a chance to respond if their registrations are challenged.

The Ohio law is set to expire at the end of this year. Brunner has asked the leaders of the Legislature to amend the law so that voters are given notice when their registrations are challenged. She also wants public hearings to be held where opposing witnesses can be confronted.

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