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Is Voter Registration Fraud Unavoidable?

ACORN is aggressively seeking to sign up new voters here in Ohio. In the process, they are also submitting many false, duplicative, or fraudulent registration forms — and there's nothing they can do about it, ACORN claims.

The Association of Community Organizations for Reform Now, or ACORN, has turned in at least 65,000 cards to the Cuyahoga County Board of Elections in the last year. The board has investigated potentially fraudulent cards since August.

The group has faced similar inquiries in other large Ohio counties. And Nevada state authorities recently raided ACORN's Las Vegas headquarters searching for evidence of fraud, according to the Associated Press.

Local representatives of the organization told Cuyahoga board members that they don't have the resources to identify fraudulent cards turned in by paid canvassers who are told to register low- and moderate-income voters.

It can't be stopped? How about not paying canvassers based upon how many people they register? How about telling canvassers not to pressure people to register multiple times? How about telling canvassers not to offer bribes — cigarettes, booze, rides, etc. — in return for registration? Of course actual voter fraud is more important than registration fraud, but registered dead people do vote sometimes, and absentee voter fraud is facilitated by voter registration fraud.

Meanwhile, a federal court has ordered Secretary of State Jennifer Brunner to implement a system to verify voter registration information when it fails to match up in database checks, and Palestra.net's Tiffany Wilson wants to know how Brunner will combat potential voter fraud here in the Buckeye State.

UPDATE: The New York Post reports on one mean in Cleveland who registered 72 times:

"Sometimes, they come up and bribe me with a cigarette, or they'll give me a dollar to sign up," said Freddie Johnson, 19, who filled out 72 separate voter-registration cards over an 18-month period at the behest of the left-leaning Association of Community Organizations for Reform Now.

"The ACORN people are everywhere, looking to sign people up. I tell them I am already registered. The girl said, 'You are?' I say, 'Yup,' and then they say, 'Can you just sign up again?' " he said.

Johnson used the same information on all of his registration cards, and officials say they usually catch and toss out duplicate registrations. But the practice sparks fear that some multiple registrants could provide different information and vote more than once by absentee ballot.

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Sixth Circuit Sides with Ohio SoS; Vacates Injunction:

Last night, the U.S. Court of Appeals for the Sixth Circuit, 2-1, vacated the district court's injunction requiring Ohio Secretary of State Jennifer Brunner to make efforts to verify voter registration information. The Columbus Dispatch reports:

The three-judge panel of the 6th U.S. Circuit Court of Appeals said Brunner is not required to provide county elections boards with the names of voters whose personal information does not match state motor-vehicle or federal Social Security records, as ordered Thursday by U.S. District Court Judge George C. Smith of Columbus.

Brunner had sought an emergency order delaying Smith's order, and the appeals court agreed with Brunner that federal law does not require her to provide the names and that the Nov. 4 election is too close for major policy changes.

The panel noted that the process of matching voter information with state and federal records has been in place since 2007, and that the details about mismatches are available to counties on individual voter records, even if not in one list. . . .

Judge Richard Allen Griffin dissented, saying the three-judge panel should not have acted so quickly and that Brunner's "lack of concern for the integrity of the elections process is astounding and deeply disturbing."

More here.

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Fraudulent Registrations No Threat:

The Cleveland Plain Dealer reports on the investigation into fraudulent and duplicate voter registrations submitted by ACORN, and notes that neither Democrats nor Republicans on the county's election board believes the bad registrations will compromise the election's results.

Even as Cuyahoga County digs deeper into possible fraud by a voter-registration group, election board members from both political parties maintain that any problems uncovered will not compromise the presidential election.

Board members say proof of voter-registration fraud does not mean illegal ballots will be cast on Nov. 4.

They said computer databases flag people who try to register multiple times, and Ohio voter identification laws exclude people from casting regular ballots when the board has not verified residency.

Still, the board is investigating suspicious registration cards submitted by ACORN, a national group that tries to register low- and moderate-income voters. . . .

The Cuyahoga County Republican Party has posted a news story about the local investigation of ACORN. But even Chairman Rob Frost, the second Republican member on the county's election board, said the potentially fraudulent registration cards do not jeopardize the fairness of the election.

"No, I don't have fear because we have a handle on problems caused by ACORN," he said.

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Will Sixth Circuit Ohio Election Decision Be Overturned En Banc?

Yesterday's divided Sixth Circuit decision voiding the district court's TRO against Ohio Secretary of State Jennifer Brunner prompted a strongly worded dissent by Judge Griffin.

Defendant Ohio Secretary of State Jennifer Brunner's lack of concern for the integrity of the election process is astounding and deeply disturbing. Also troubling is the majority's rush to issue the present order in violation of the practices of our court. Although a petition for initial en banc hearing is pending and will be decided tomorrow by our active judges, Jude Moore along with visiting Judge Bright, have decided to ignore the en banc petition and issue their order. I respectfully dissent regarding the merits of their decision and object to the procedure.

In the normal course of review, we will grant a stay of a temporary restraining order only if the district court abuses its discretion. . . . Here, defendant Brunner has failed to demonstrate that the district judge abused his discretion, and, thus, the emergency motion for a stay should be denied.

The majority assumes, and I agree, that plaintiffs possess standing to bring this 42 U.S.C. § 1983 action alleging a violation of the Help America Vote Act (HAVA). . . . Defendant Brunner claims compliance with HAVA, but the district court found that the system as currently structured is unable to effectively identify the mismatches of potential voters to the county boards of elections. The court determined that the "Verification of voter registration information" required by HAVA was not executed because "there is no effective way for irregularities to be reviewed." Without implementation, there is no compliance. In order to remedy this violation, "Defendant represented that it could take two or three days of programming work before the State would have the ability to search for mismatches in the same way it has the ability to search other fields such as name, address, social security, date of birth, precinct number . . . ." The district court's TRO requiring defendant to take two or three days to make the identification system effective and in compliance with HAVA is certainly not an abuse of discretion.

Judge Griffin then attached of the opinion and order by District Court Judge George Smith.

Allegations of procedural irregularities on the Sixth Circuit are something we've heard before. An en banc ruling could issue as early as today. Stay tuned.

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ACORN's Registration Quotas & Their Consequences:

The Cleveland Plain Dealer reports on a man who was registered to vote 73 times.

Johnson and another prolific registrant were subpoenaed to testify at a meeting Monday as the Elections Board continued its look at possible fraud by ACORN, a national organization that tries to get low- and moderate-income people to register. ACORN's methods have drawn interest in a number of states this presidential election year.

Johnson, 19, said he mostly was trying to help ACORN workers who begged him to sign up because they needed to keep their jobs.

"They'd come up with a sob story why they needed the signature," said Johnson, of Garfield Heights.

ACORN leaders have acknowledged that workers paid by the hour were given quotas to fill.

Of course registration fraud and actual voter fraud are not the same thing, but registration fraud creates the potential for voter fraud, particularly by absentee ballot, and it may be happening in Cuyahoga County.

Investigators probing ACORN have learned that an Ohio man registered to vote several times and cast a bogus ballot with a fake address, officials said yesterday, as they revealed that nearly 4,000 registration applications supplied by the left-leaning activist group were suspect.

The vote of Darnell Nash, one of four people subpoenaed in a Cuyahoga County probe of ACORN's voter-registration activities, was canceled and his case was turned over to local prosecutors and law enforcement, Board of Elections officials said yesterday.

Nash had registered to vote repeatedly from an address that belonged to a legitimately registered voter, officials said during a hearing at which the subpoenaed voters were to testify.

Board officials had contacted Nash this summer, questioned his address and told him to stop repeat registering.

But still, he breezed into Ohio election offices - the state allows early voting for president - reregistered with a fake address and cast a paper ballot, officials said.

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How Bad Are Ohio's Electoral Problems?

The Cincinnati Enquirer reports on alleged voting problems in Ohio, and suggests there's more smoke than fire.

With three weeks until Election Day, partisans on both sides are once again drumming up fears that the voting process in Ohio is tilted against their side. Republicans rail about an army of fake voters; Democrats say Republicans want to disqualify newly registered voters, who are expected to favor Barack Obama.

The evidence suggests both sides have little to fear.

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En Banc Sixth Circuit Reinstates TRO in Ohio Election Case:

The U.S. Court of Appeals for the Sixth Circuit issued an order this evening reinstating the district court's TRO requiring Ohio Secretary of State Jennifer Brunner to provide county election boards with state voter registration information so as to facilitate confirmation of registration information. Rick Hasen has details and initial thoughts here and here.

A majority of the en banc court has reinstated a TRO, which will require the Ohio Secretary of State to send along to county elections boards those names that are a "mismatch" between voter registration and Ohio Bureau of Motor Vehicle records. The TRO does not require, and the en banc court majority emphasizes, that a county board is not required upon hearing of the mismatch to remove eligible voters from the rolls. But the court does suggest (on page 9 of the pdf) that it would be the basis for not counting absentee ballots of voters flagged as a mismatch barring further investigation by the board. There may also be some boards that could try to require mismatched voters voting in person to cast provisional ballots. And it also appears that to the extent the mismatch lists are public, it will provide the potential basis for challenges by the ORP on election day (though I believe it is now harder to mount such challenges in Ohio than it was in 2004, when the ORP threatened to make 35,000 challenges at the polls.

The AP reports here.

The opinion is now available here. [Note: Link updated to reflect revised opinion Wed., Oct. 15 at 10AM]

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Ohio SoS Seeks Emergency Stay from Justice Stevens:

From the New York Times report on the Sixth Circuit's 10-6 en banc decision in Republican Party v. Brunner.

The court decision requires Jennifer Brunner, the Ohio secretary of state, to provide the names to local election officials by Friday. Once the local officials have the names, they may require these voters to cast provisional ballots rather than regular ones, and they may ask partisan poll workers to challenge these voters on Election Day. Both possibilities could cause widespread problems when the voters show up at the polls.

Concerns about those problems led the Ohio Attorney General’s Office to file an appeal of the decision to the United States Supreme Court on behalf of Ms. Brunner on Wednesday night.

The state’s appeal went directly to Justice John Paul Stevens because he oversees the Sixth Circuit. It argued that the Republican Party had nearly two years to raise complaints about the process of screening voter registrations and failed to do so. Any changes now to the process would disrupt preparations for the election, it contended.

More on reactions to the ruling from the Columbus Dispatch and Cleveland Plain Dealer.

UPDATE: The Ohio State election law guys are on top of things (as usual) and have posted Brunner's stay application here, and SCOTUSBlog covers the stay application here.

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Thoughts on Brunner v. Ohio Republican Party:

I have a few initial thoughts about Brunner v. Ohio Republican Party and the Supreme Court's order granting the Ohio Secretary of State's request for a stay and vacating the TRO that would have required her to provide information about mismatches between voter registration data and the Ohio BMV database to county election boards. As Rick Hasen notes here, this means that the Ohio Republican Party will not be able to obtain mismatch data that it could use to challenge voters and absentee ballots.

First, I think the Supreme Court is correct that, under Gonzaga University v. Doe and Alexander v. Sandoval that it is doubtful whether there is a private cause of action to enforce Section 303 of the Help America Vote Act in federal district court. There are also reasons for federal courts to be particularly reluctant to enforce such actions on the virtual eve of an election. Yet on the U.S. Court of Appeals for the Sixth Circuit, it was largely the more liberal judges who argued that there was no private cause of action (save for Judge Gilman, a Clinton appointee, who joined the ten-judge majority).

While I am skeptical that a cause of action existed, I believe that the majority had the better of the argument on the merits, particularly given the highly deferential standard of review. In short, I believe it is difficult to argue that the district court abused its discretion in ordering the Secretary of State to implement the office's prior approach mismatches between the BMV and voter registration data. Further, I find the laches argument against the Ohio GOP somewhat strained because it is unclear on the record when Ohio Secretary of State Jennifer Brunner changed the manner in which her office handled data mismatches, so it is unclear when the Ohio GOP was on notice and should have been expected to file suit. [NOTE: It appears the change was made by Brunner's predecessor. If so, this would strengthen the laches argument considerably, particularly if it could be shown the Ohio GOP was on notice of the change.] Still, if there is no private cause of action, there is no basis for a federal court to address the case.

Another interesting aspect of the ruling is the spat between Judges Martin and Batchelder over whether the latter should have recused herself from the case. I will address this in a follow-up post.

UPDATE: Bill Dyer offers his thoughts:

(1) Today's ruling turned on important but esoteric legal principles that don't have much to do with voting rights in general or the situation on the ground in Ohio in particular, and it ought not be interpreted as the Supreme Court either rejecting or accepting the proposition that there's wide-spread and systematic voting fraud being undertaken there or anywhere else. (2) It does, however, emphasize that the Supreme Court thinks this is an important topic. And most importantly, (3) Congress desperately needs to further reform the voter fraud and voter registration laws to specify who may sue under them, when, how, and for what relief.Rick Hasen rounds up more news and reactions here.

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Recusal Row in Ohio Republican Party v. Brunner:

In Ohio Republican Party v. Brunner, Judge Boyce Martin took aim at Judge Alice Batchelder for failing to recuse herself from the case.

What I find troubling is the fact that Judge Batchelder did not recuse herself from voting for rehearing this case en banc, while her husband stands for reelection this year as a state representative in Ohio, whose election will no doubt be substantially altered by the way the en banc majority ultimately decides this case. At stake here is the public’s confidence not only in the outcome of its elections, but also in the impartiality of its judges who must, from time to time, review the procedures which govern those elections.
Judge Martin cited 28 U.S.C. § 455, which requires recusal when a judge's "impartiality might reasonably be questioned," and further requires recusal where the judge's spouse has "an interest that could be substantially affected by the outcome of the proceeding." Further, Rule 2.11 of the ABA Model Code of Judicial Conduct calls for recusal where a judge's spouse "has more than a de minimis interest that could be substantially affected by the proceeding."

After the initial opinion was issued, judge Batchelder wrote a concurring opinion defending her decision not to recuse.

I write separately because Judge Martin scolds me for failing to act on my own initiative to recuse myself from the vote on whether to rehear this case en banc. His accusation cannot be taken seriously, and I cannot now — as I could not when the question first came before us — justify recusing myself. . . .

Bill Batchelder . . . is not a named party to this lawsuit, and is one of literally hundreds of candidates on the November ballot in Ohio. Unless Judge Martin is claiming that only Republican candidates will benefit from preventing vote fraud, Bill Batchelder’s candidacy is no more affected by this litigation than is the candidacy of every other individual on that ballot. But this case is not about candidates. It is about voters. It is about the right of every single legally registered voter in the state of Ohio — regardless of party affiliation — to cast his or her vote, and the corresponding right of each of those legally registered voters to be protected from having that vote diluted by illegally or fraudulently cast votes. The only thing at issue here is the ability of local elections officials to obtain the necessary information to ensure legal voting and to prevent illegal and fraudulent voting. . . .

In short, there is no basis for any claim that enforcement of the voter-registration laws affects my husband differently from any other candidates because he is a Republican, or that discovery of voter fraud is more beneficial to Republicans than to others. If, as Judge Martin suggests, my husband (and his party) stand to benefit from the outcome of this decision — that is, if my husband’s chances of winning election are improved by assuring a fair election — then my husband stands to benefit in the same way as every other Ohio voter, each of whom is entitled to participate in a fair election. None of this provides any basis upon which I could recuse.

Particularly because no party in the case sought Judge Batchelder's recusal -- and, as she notes in her opinion, no member of the court suggested her recusal before issuance of the public opinion -- Judge Martin's opinion looks like petty payback for Judge Batchelder's report as acting chief judge finding merit in misconduct complaints against Judge Martin for mishandling two high-profile cases when he was Chief Judge of the Circuit. Bill Batchleder's occupation is hardly a secret, and if the Ohio Secretary of State did not think his pending election contest as a GOP candidate justified recusal, I do not see why this should have been an issue. There is no reason for one judge to impugn the integrity of another for failing to recuse when no recusal motion was filed. If Judge Martin was really so concerned about the appearance of a conflict caused by Judge Batchelder's failure to recuse, he should have raised this matter privately before impugning one of his colleagues in public. Making public accusations of this sort may have precedent on the Sixth Circuit, as Martin notes in his opinion, but that hardly justifies his dissent (and it is regrettable that three other judges, Daughtrey, Cole, and Clay, joined the opinion).

Had a recusal motion been filed, however, I think the issue is much closer than Judge Batchelder suggests. While she is certainly correct that all voters have an interest in the fair and impartial administration of the election, it is also true that the Ohio GOP believed it could obtain partisan advantage from its lawsuit. Forcing the Secretary of State to provide mismatch information to county election boards would have made it easier for the Ohio GOP to challenge potentially ineligible voters, and the Ohio GOP clearly believed that this would inure to their net benefit this November, when Bill Batchelder is standing for re-election. Thus, I think one could reasonably argue that Bill Batchelder had "an interest that could be substantially affected by the outcome of the proceeding" that could have justified Judge Batchelder's recusal.

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