Project Vote In Ohio: It Ain’t The Voting, It’s The Counting

by Josie Wales

“Congress should address the need for both national standards and a more robust enforcing authority.  If not, more decision making will fall to the states,” said Miles Rapoport, President of Dēmos, an umbrella corporation for the myriad of progressive groups attacking our state electoral processes.  Progressives, realizing the Help America Vote Act of 2002 (HAVA) left much of the implementation to states, began their National Voter Registration Act of 1993 (NVRA) assault in 2006.

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The first battle over compliance with the NVRA occurred in Ohio in 2006.  Coincidentally, the Secretary of State Project (SoSP) focused much of its efforts on seizing the open-seat for Ohio Secretary of State that same year.  Seeing an opportunity to de-legitimize Ohio’s electoral process and to create an atmosphere favorable to a progressive candidate, ACORN filed a suit a little over a month before the 2006 elections.  Sound familiar?  It was the strategy in Michigan in 2004.  But Secretary of State J. Kenneth Blackwell (R) was not going to leave office without a resolute fight in defense of Ohio.

At issue was NVRA § 7: Voter Registration Agencies.  Any state agency providing public assistance received designation as a voter registration agency.  Public assistance agencies were supposed to follow a set of procedures providing mail voter registration, assisting applicants in completion of those forms, and accepting completed voter registration forms.  Each state designates a “chief state election official” to coordinate state responsibilities for compliance with the NVRA.

The procedures for compliance are rather straight-forward, so Project Vote had an easier job alleging non-compliance.  Catch any agency on a day after it has run out of forms.  Seek assistance from any personnel unfamiliar with NVRA requirements.  Find any individual receiving public assistance that has moved, and was formerly registered to vote.  Compare the number of individuals registered in the first year under NVRA to the number of individuals registered now (because every year should see the same amount of people receiving public assistance, the same amount of people unregistered, and they will always be new or moved people, right?)  Send a letter to the chief state election official alleging non-compliance through “scientific” studies.  Demand a plan to remedy violations.  Offer “help” to the state.  Then sue to “protect” the voters (and more importantly, recoup expenses).  Brilliant!

Republican Secretary of State Kenneth Blackwell fought back.  A motion to dismiss was filed on three grounds: (1) standing (of ACORN), (2) notice, and (3) improper party defendants.

  • (1) Standing:

This was the best argument, and one that should be utilized anywhere ACORN or other progressive groups file suit.  First-party standing requires (a) injury in fact, (b) the injury is fairly traceable to the challenged action of the defendant, and (c) likelihood the injury can be redressed.  Third-party standing requires (a) members would otherwise have standing, (b) the interests at stake are germane to the organization’s purpose, and (c) neither the claim asserted nor the relief requested requires participation of individual members.  Additionally, mere interest is not sufficient to confer standing and the organization must establish that its ability to further its goals has been ‘perceptively impaired’ so as to constitute more than an abstract setback.In regards to first-party standing, the court points out that ACORN would have spent money on voter registration drives anyway.  As to third-party standing, ACORN failed to allege anything other than an abstract setback to its goals (whatever that might be).

  • (2) Notice:

Notice was established fairly easily, as ACORN notified the “chief state elections official” of the alleged violation of NVRA involving the individual plaintiffs identified in the suit.

  • (3) Improper Party Defendants

A proper defendant can be forced to redress the plaintiff’s injury.  Whether the SoS would be a proper defendant was in flux at the time of this ruling.  What is clear is that the progressives had not done their homework.  Contempt for state law led them to not read and argue the state statutes with precision.  Ignorance left them clueless as to the contemporary understanding of liability under the NVRA in the federal courts.  And because SoS Blackwell was not going to “help” ACORN, the lawsuit floundered in federal district court.

In the memorandum in opposition to the motion to dismiss, Project Vote’s attorneys point to the state statute that would later allow ACORN to sue Ohio successfully.  However, Project Vote explained the Ohio SoS’s duties in terms of the wrong federal court ruling.  In United States v. New York, the federal district court determined that under New York state law and jurisprudence state officials were responsible for local enforcement of the NVRA.  SoS Blackwell relied on United States v. Missouri, where the federal district court found that the SoS lacked enforcement responsibilities.  In reality, Ohio statutes put the SoS’s responsibilities somewhere in-between Missouri and New York.  In addition, Missouri, New York and Ohio are all in different federal circuits, so district court cases from each state are merely persuasive, not controlling.  Regardless, the progressives got nowhere with state officials defending their state.

The case was dismissed in December 2006.  Enter SoSP candidate Jennifer Brunner, who took office in January 2007.  During her term as SoS, she did much to advance the voting issues susceptible to vote fraud that Michigan fought against in 2004. She agreed to work closely with public assistance agencies and ACORN to ensure “compliance” with NVRA.  The District Judge, a Clinton appointee, even wrote a memorandum in opposition, citing Brunner’s willingness to do whatever she was asked to do.  Unfortunately for Ohio, that was not enough for the progressives.  ACORN, Dēmos, Project Vote and the associated attorneys wanted money. As you will see in Missouri, the need to generate legal fees was paramount over the desire to work with a state to register low-income voters.  Even though ACORN had a SoS willing to help them, they appealed to the 6th Circuit to re-open the original case.  Brunner used the same argument Blackwell had used.  The appellate court skewered her argument, referring to the United States v. Missouri case  and pointing out it had been overturned prior to her defense.  Either Brunner is the most incompetent election-law lawyer ever (which would be surprising given her background), or she only wanted to put up the appearance that she was defending the interests of Ohio taxpayers.  This second time around, the court interpreted the state statutes broadly to grant the SoS enforcement powers under NVRA.  It was Brunner’s responsibility.  And so Brunner’s office settled in November 2009.  As a result, the progressives and their lawyers were granted an as yet unreleased amount of money from Ohio taxpayers for the settlement.


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Posted Feb 19th 2010 at 5:50 am in ACORN, Featured Story, Justice/Legal | 111 Comments