Michigan And ACORN: When At First You Don’t Succeed

Project Vote has been causing mischief in the Midwest since before President Obama was their community organizer, but this last decade has seen an evolution in the number and sophistication of state cases.  We start in Michigan, where  The Secretary of State Project (SoSP) has endorsed progressive Jocelyn Benson for Michigan Secretary of State.  The following is how the endorsement should read:

“Progressive scholar and DNC organizer Jocelyn Benson is running for an open seat to replace Secretary of State Terri Lynn Land, who prevented us from adding unsupervised provisional ballots to your elections.  In 2004, Benson ran a voter ‘protection’ campaign in 21 states for the DNC, deploying 17,000 starving lawyers at minimum wage to coerce low-income voters.  In Michigan in 2008, Benson helped lead the progressive fight to stop Secretary of State Land from cleaning the voter rolls.  We plan to sue the state of Michigan no matter who wins, but it will hurt less if she is elected.”

At least that is how I read their endorsement, but maybe I am getting ahead of myself.  Let us go back to June 16, 2004.

A directive issued by the Michigan Director of Elections established provisional ballots would not be counted for (1) first-time voters who register by mail and who cannot provide identification on election-day, and (2) voters who vote at the wrong polling place.  Provisional voting is required by the Help America Vote Act of 2002 (HAVA), and applies to an individual that does not appear on the official list of eligible voters for the precinct in which that individual wants to vote.  HAVA allows for “voter registration procedures established under applicable State law,” in regards to compliance.  In fact, much of HAVA allows for states to establish the procedures necessary to implement the policies.

Of course, we know that progressive contempt for state law and practice is only surpassed by progressive contempt for well-run elections.

That is why ACORN’s complaint was not filed with the federal district court until a little over a month before the 2004 elections, and then refiled ten days later.  The amended complaint reads like a law review article or an amicus brief filed before the Supreme Court.  Realizing that the violations alleged were not clear under the plain meaning of the law, ACORN’s attorneys quote the intent of the law from the likes of Senators Chuck Schumer (D) and Paul Wellstone (D), and the relevant statutory provisions are selectively quoted with ACORN’s interpretations.  The complaint utilizes the “shotgun approach” where every conceivable violation is alleged.  If we sift through all of the fluff, we can see that their claim, essentially, is that a provisional ballot should always count if the person allegedly voting is a real person.  The result is that ACORN can then transport as many people as it wants to any location, and as long as the individuals claim to be people actually registered to vote in Michigan, even without identification, their votes should count.

Read that again.  ACORN wanted provisional ballots to count prior to their certification as actual votes.  What this means in practice is that in close elections, a judge would have to explicitly go back through provisional ballots and toss them out.  That is significantly more difficult to agree to than allowing provisional ballots that have been verified to be added to vote totals.  Voter protection means you don’t get to cut votes – you only get to add to them.  And under ACORN’s reasoning, a provisional ballot should be a vote, nullifying the need to call it “provisional.”

On October 7, 2004, the Director of Elections agreed to revise the identification requirement so that individuals could present identification within a week after the election, though he did not budge over the polling place issue.  Despite ACORN’s attempt to catch Michigan officials off-guard, the state responded forcefully and thoroughly.  In one of the best defenses we’ve seen, Secretary of State Land even points out that her Director of Elections was involved with the drafting process of HAVA.  The relevant legal authorities, laws and cases on point, are identified immediately and concisely.  To counter the alleged intent of HAVA, according to ACORN, the state points out legislative history in opposition to the aforementioned senators.  The relevant statutory provisions are identified in full, rather than “cherry-picked” as in the complaint.  And to follow it up, Michigan cites the Tenth Amendment; HAVA only applies to federal election regulation, since the states still have the authority to regulate their own elections under the Constitution.  Basically, ACORN was claiming HAVA pre-empted state law, despite the fact that HAVA requires states to establish their own procedures for implementing parts of the act.

Judge David M. Lawson disagreed with Michigan.  He claims that sensible election laws “ought to focus on two goals: maximizing the participation of eligible voters and eliminating fraud.”  While we can certainly agree that the latter principle is compelling, the former is perplexing.  Why do we need laws encouraging those already registered to vote, to actually vote?  Should we go further and offer everyone a beer coupon if they vote?  That worked in the state of Missouri, until they got caught.  Lawson points to a Constitutional provision (Article I § 4) allowing states to establish time, place and manner of elections for federal office, while reserving Congressional authority to alter those procedures, but he does not address the issue of a state’s control over its own election procedures (10th Amendment & HAVA).  As far as background and facts, he relied on the loose assertions of the complaint, rather than the concise facts of the answer.

What this really boiled down to was the standard for granting a preliminary injunction, which would restrict the state’s ability to enforce its procedures.  ACORN must establish (1) the likelihood of success on the merits, (2) the preliminary injunction will prevent irreparable injury, (3) the lack of substantial harm to others, and (4) the public interest will be served.  How restricting a state’s ability to eliminate voter fraud protects the public interest and does not substantially harm lawful voters confounds me.  Perhaps I am not quite as learned as the honorable judge who granted the preliminary injunction.  Then again, the 6th Circuit Court of Appeals must have been confounded as well, because they reversed his ruling without even writing an opinion.

In this case, ACORN failed at hijacking the electoral process.  This would not be its last stand, though.  Future cases focused on the National Voter Registration Act of 1993, instead of HAVA.  Project Vote began planning out its attack far in advance of elections.  And the Secretary of State Project formed to oust uncooperative secretaries of state.  In 2010, should Benson win, she will need to be carefully watched.