A provisional ballot is a second-class vote. The voter leaves the polling place not knowing whether his or her vote will count. He or she will only find out by calling a toll-free number or checking a website. If the answer is that the vote was not counted, the voter will be given a reason, but by then it will be too late to correct. That voter will have been directly and absolutely deprived of the right to vote without a meaningful remedy.Seven civil rights and public interests groups submitted their amici curiae brief in support of the Wisconsin General Accountability Board's (GAB) motion to dismiss the Attorney General's legal petition endorsed by the Wisconsin Republican Party.
Voters' rights communities fear that the Wisconsin Attorney General would suppress voters in the presidential election, characterize the move as a continuation of the national GOP voter suppression effort, and see a corrupt use of the Attorney General's office for partisan gain.
Attorney General J.B. Van Hollen filed an extraordinary writ of mandamus petition seeking a court-ordered remedy that would overrule a state agency, the Governmental Accountability Board (GAB), as the GAB seeks to protect legally voting citizens in a highly politicized voting issue implementing a federal law during this year's presidential campaign.
Though Van Hollen's suit is now effectively moot in a sense as any judicial remedy would not be workable two weeks out from the election when a Dane County judge is expected to rule on the merits and appeals are expected, Van Hollen, already suffering from diminished credibility for the partisan action, may now further politically suffer for the ambiguity and the lack of precision in his legal arguments that do not nearly meet the exacting requirements for the sought court-ordered remedy.
The civil rights amici curiae brief is often harsh in its tone of rebutting Van Hollen's arguments through its dissection of the September brief supporting his complaint, and the GAB's brief arguing in favor of dismissal is not much less harsh.
Look for a successful dismissal in late October.
From the Brennan Center for Justice:
The amicus brief—click here to read—explains Van Hollen's attempted purges and database matching goes beyond the intended scope of (Help American Vote Act ) HAVA. 'No other state has ever undertaken the kind of retroactive matching that the attorney general seeks,' said Wendy Weiser, director of voting rights and elections. 'It’s bad policy—a recipe for chaos, confusion and, inevitably, disenfranchisement.'Identification Not Eligibility and Removal
The brief argues that Van Hollen is wrong in arguing that the Help American Vote Act (HAVA) obligates Wisconsin’s GAB to review the voting eligibility of Wisconsin voters who have registered to vote.
Rather HAVA “generally requires Wisconsin (and other states) to utilize database matching for the limited purpose of ensuring that accurate identifying numbers are assigned to registered voters,” reads the brief.
This means simply that one registered voter should get assigned a specific identifying value like a DOT number or the last four digits of a Social Security number.
The civil rights’ groups brief importantly argues that HAVA:
… does (not) include any language specifying that an unsuccessful computer match should result in the registration applicant being excluded from the rolls. It likewise does not include any language specifying that an unsuccessful match generally should result in any limitation being place on the registrant’s ability to vote. … (T)he Attorney General does not cite any such language in HAVA (demanding specific rules and actions by a given state). (pp 7-8)The brief notes that Van Hollen's complaint does not say specifically that mismatched registrants should be removed from the state registration list, but this would appear to the only "reasonable" interpretation of Van Hollen's claims. (p.7 [footnote 3])
Instead the Attorney General essentially contends that what Congress meant to say, but did not say, when it specified that ‘[the computerized [registration] list shall be coordinated with other agency databases within the State,’… and specified that matching should include use of the driver’s license and Social Security Administration databases, was that states are required to disqualify registrants (or otherwise generally limit their right to vote) if and when they are the subject of an unresolved computer match. (p. 8)
Van Hollen has spoken repeatedly about and his Sept. 10 petition warns that "… properly qualified voters are at risk of having their votes diminished and diluted by the votes of unqualified, ineligible voters who are not entitled to cast ballots." (p 3)
Van Hollen and the GOP have argued throughout his efforts that Van Hollen’s office says stretch back some two years that they are simply trying to follow the HAVA law and its requirements.
But, as looks quite possible, the judge rules that Van Hollen is fundamentally misreading the HAVA law, Van Hollen's statements demand that incompetent be placed alongside corrupt in describing the partisan track of this case and the Attorney General's office.
The brief continues:
…Congress clearly understood that database matching potentially could be linked with voter eligibility, understood how to write specific language that links the two, and chose not to require such a link except with regard to a narrow group of voters (those voters who have registered by mail and have never voted for federal office). (pp 8-9)The brief also argues that the plain language of HAVA imposes specific restrictions on the authority of Wisconsin to remove persons from the registration rolls so as to ensure that persons who are eligible to vote and are registered to vote are not mistakenly deleted from the rolls, citing HAVA text reading that all states must provide “(s)afeguards to ensure that eligible voters are not removed in error from the official list of eligible voters.”
The absence of any ‘database-matching, voter eligibility’ requirement in HAVA (except with regard to the aforementioned narrow group of voters) also means that the GAB’s actions do not, under HAVA, raise any specter that persons ineligible to vote have been included in the state’s voter registration database. The Attorney General’s assertion to the contrary is simply his personal, unsupported opinion. (pp 9-10)
In the GAB’s brief in its motion to dismiss is this excerpt that is an overview in the introduction stating the GAB is the responsible and appropriate state agency to determine the implementation of HAVA:
Simply put, the Attorney General asserts that his interpretation of HAVA‘s requirements regarding the maintenance of that list and its coordination with the Wisconsin Department of Transportation database is right, and the Government Accountability Board’s interpretation is wrong. However, it is the Board, not the Attorney General, that has responsibility and discretion to interpret and implement HAVA’s provisions. (pp 1-2)Political Implications
The question for Wisconsin citizens is whether Attorney General J.B. Van Hollen used his office to further the political cause of the Republican Party and its presidential nominee, John McCain.
What did Van Hollen, the McCain co-chair, do?
WisPolitics reports:
“A week before he filed suit against the Government Accountability Board, Attorney General J.B. Van Hollen promised Wisconsin delegates at the Republican National Convention they'd be hearing much more from the Department of Justice on targeting those who (are) ‘illegally and illegitimately registered to vote.’”
Van Hollen’s position is at best highly controversial.
But according to the AG’s office, Van Hollen is just seeking to “enforce the law” in a non-partisan manner for the people of Wisconsin.
Asks Dem Party Chairman Joe Wineke: “If JB Van Hollen is claiming that this lawsuit isn’t political, then why did he discuss it with the RPW chair at a partisan political convention and send signals to fellow Republicans that he was mobilizing the Department of Justice to take action?" (WisPolitics)
Here are some more questions.
Among the many public statements made by Van Hollen about enforcing the law and protecting the right of Wisconsin citizens to vote in this manner, how many statements did the nonpartisan attorney general make at the Democratic Convention, or any other Democratic gathering?
How many statements did Van Hollen make on this matter to civil rights groups like the NAACP?
How many conversations did his top aide, Deputy Attorney General Ray Taffora, have with Democratic Party officials like Joe Wineke, like Taffora did with Reince Priebus, the GOP party chair?
What empirical evidence does Van Hollen present in his complaint that merits such an extraordinary legal action in the face of the 2005 Republican US Atty Biskupic and then-District Attorney E. Michael McCann's task force's report that rejected the notion that voting fraud occurred in any extraordinary manner in the last presidential election?
None that I can read. But Republicans are sticking to their guns.
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