Debra Bowen for California Secretary of State - Do The California Secretary of State's Voter Registration Database Restrictions Violate Federal Law?

Do The California Secretary of State's Voter Registration Database Restrictions Violate Federal Law?

California Political Desk

Aug 02, 2006

FEDERAL JUDGE BLOCKS IMPLEMENTATION OF WASHINGTON LAW NEARLY IDENTICAL TO STANDARDS SET BY CALIFORNIA’S SECRETARY OF STATE.

BOWEN CALLS ON SECRETARY OF STATE TO ALTER HIS AGREEMENT WITH BUSH ADMINISTRATION SO ALL ELIGIBLE CALIFORNIA VOTERS CAN REGISTER.

SACRAMENTO – “. . . the Court finds that plaintiffs have demonstrated a strong likelihood of success on the merits of their argument that [Washington State law] RCW 29A.08.107 stands as an obstacle to achieving the purposes and objectives of HAVA [Help American Vote Act], and is therefore preempted by federal law.”

Those are the words of U.S. District Judge Ricardo Martinez, who on Tuesday afternoon, issued a preliminary injunction to prevent the implementation of a Washington state law preventing people from registering to vote unless the information on their voter registration form matches a record on file with the Social Security Administration or the state’s Department of Licensing.

The case is relevant in California because the California Secretary of State adopted regulations to implement an agreement with the Bush Administration’s Justice Department in 2005 that are very similar to the Washington state law the court put on hold yesterday afternoon. It’s not known how many Californians may have been prevented from registering or re-registering to vote prior to the June primary or how many are still experiencing problems as they attempt to register in time for the November election.

“That ruling tells me there’s a very good chance the regulations the Secretary of State adopted to implement his agreement with the Bush Administration violate federal law and the state Constitution because of the barriers they put up to prevent eligible Californians from registering to vote,” said California State Senator Debra Bowen, the chairwoman of the Senate Elections, Reapportionment & Constitutional Amendments Committee and the Senate Select Committee on the Integrity of Elections. “We’ll never know how many people were prevented from voting in the June primary thanks to the Secretary of State’s regulations. The general election less than 100 days away, meaning it’s time for him to change his regulations to make sure no eligible voter who wants to register is turned away because they’re not on some bureaucratic list.”

In granting the preliminary injunction in Washington Association of Churches, et al. v. Sam Reed, the Court noted:

“. . . HAVA’s matching requirement was intended as an administrative safeguard for ‘storing and managing the official list of registered voters,’ and not as a restriction on voter eligibility.”

The California Secretary of State’s regulations appear to conflict with this requirement, as California Code of Regulations 20108.18 (b) states:

“. . . Elections officials shall use the official statewide voter registration list to determine eligibility to vote, issuance of ballot, and whether or not to count a provisional ballot.”

“Whether a person is on a bureaucratic statewide voter registration list has nothing to do with whether they’re eligible to register to vote in California,” continued Bowen. “The State Constitution and state law ensure that everyone who is a U.S. citizen, will be 18 years old by the next election, is a resident of California, and isn’t in prison, on parole for a felony conviction, or mentally incompetent has a right to register to vote in this state. The Secretary of State should be focused on upholding the constitutional right that every eligible California voter is entitled to instead of worrying about whether their registration application correctly matches up with their DMV record or their Social Security Administration record.”

Following pressure from lawmakers and reports that 43% of L.A. County’s voter registration applications were being rejected by the Secretary of State’s system (the Secretary of State put the statewide rejection rate at 26% in March 2006), the Secretary eased his matching regulations in April. However, the regulations still require a match to be made before a voter can register to vote (unless the voter doesn’t have a DMV record or a Social Security number, in which case they’re assigned a unique identifying number and place on the voter registration rolls). What the court determined in issuing the preliminary injunction is the match concept as a whole violates federal law and may be unconstitutional because whether a person’s voter registration application matches another government record has nothing to do with whether they’re eligible to vote. Under the matching requirement, if a match isn’t made, a voter won’t be placed on the statewide voter registration database, won’t receive a sample ballot with their polling place information, won’t receive an absentee ballot application, and won’t receive an absentee ballot (if they’d been registered as a permanent absentee voter). While these voters do have the right to go to the polls and cast a provisional ballot, many voters aren’t aware of this option and that ballot won’t be counted until their eligibility to vote can be verified.

The court noted in the Washington case that plaintiffs are also likely to succeed on their claim that the matching requirements violate the federal Voting Rights Act. The Act prevents anyone from denying a person the right to vote or register to vote based on an error or omission that isn’t “material to determining whether such an individual is qualified under State law to vote in such an election.” The court cited an Eleventh Circuit Court of Appeals decision issued earlier this year which said, “Georgia cannot mandate disclosure of SSNs [Social Security numbers] because such information is not ‘material’ to a voter registration system under . . . the Voting Rights Act.”

The court in the Washington case also noted the plaintiffs demonstrated that “irreparable harm” had been caused by the Washington law because 178 people had their voter registration applications cancelled, deleted or otherwise rejected as of June 22, 2006 (Washington State’s primary election will be held September 19). Back in late March, Los Angeles County reported nearly 43% of all of its voter registration and re-registration applicants – some 14,629 people – were rejected by the Secretary of State’s system. It’s not known how many of those people were able to register to vote following the changes the Secretary of State made to the system in April. It’s also not known how many eligible voters are still having their voter registration or re-registration applications rejected as a result of the Secretary of State’s regulations.

“The U.S. District Court in Washington has a problem when 178 people can’t register to vote, but California’s Secretary of State continues to stand behind his regulations that may be preventing thousands of people from being able to register to vote throughout the state,” concluded Bowen. “The judge in the Washington case said ‘. . . the Court does not consider a person’s right to vote a mere ‘detail’ to be so easily dismissed.’ I wish and I’m sure thousands of California voters wish our Secretary of State felt the same way. The Secretary’s lack of concern for a person’s ability to vote extends beyond the voter registration database issue. On Monday, Kern County’s Assistant Registrar of Voters testified before the committee that as many as 500 people may have been prevented from voting because the electronic machines went down and the registrar of voters was so convinced the system was foolproof, she limited the number of paper ballots sent to the polls and refused to train poll workers on how to use them. How did the Secretary of State respond to this disenfranchisement? His conclusion was ‘The County had a solid infrastructure and training in place to deal with this Primary Election issue’ and that ‘[t]he problems that occurred in Kern County were unfortunate and local.’ Unfortunate? Having 500 people turned away from the polls because workers weren’t trained on how to hand out paper ballots isn’t ‘unfortunate,’ it’s a travesty and the Secretary of State should be doing a lot more than just shrugging his shoulders and saying, ‘Oh well.’”

Following is a timeline of events related to California’s voter registration database issue:

November 2, 2005 – The Secretary of State announces he has entered into an agreement with the U.S. Department of Justice to create the Statewide Voter Registration Database mandated by HAVA. The Bush Administration refers to it as a “model for other states . . .”
December 5, 2005 – The Asian Pacific American Legal Center (APALC) and the National Association of Latino Elected & Appointed Officials (NALEO) write to the Secretary of State to comment on the regulations he proposes to implement the agreement, saying they would “disenfranchise many voters.”
December 12, 2005 – The Secretary of State adopts emergency regulations to implement the agreement and those regulations include a requirement that a voter’s registration form must match records in the Department of Motor Vehicles’ or Social Security Administration’s database in order for the voter to be registered to vote (a voter without a driver’s license, a California identification card, or a Social Security number will be assigned a unique identifying number and be registered to vote). Emergency regulations can only last for 120 days, so these were set to expire on April 11, 2006, but were extended on April 5, 2006.
February 24, 2006 – The Secretary of State responds to the APALC and NALEO letter by saying in part, he will consider amending the regulations following “the experience of the June primary.” This means tens of thousands of people may be prevented from registering to vote and voting in the June primary.
March 24, 2006 – The Brennan Center for Justice in New York (www.brennancenter.org) issues a report on how the 50 states are implementing the HAVA requirement to create a Statewide Voter Registration Database. The report finds that California has implemented one of the most restrictive systems in the country in terms of setting up barriers that may prevent eligible voters from registering to vote.
March 28, 2006 – Senator Debra Bowen and the League of Women Voters of California write to the Secretary of State independently, pointing out figures from Los Angeles County showing nearly 43% of all registration forms – representing 14,629 people – have been rejected to date by the Secretary of State’s database, and urging the Secretary to alter his regulations and data matching criteria to resolve the problem.
March 29, 2006 – The Secretary of State’s spokesperson is quoted as saying the rejection rate is 26% across the state. According to county elections officials, historically only about 1% of all voters attempting to register to vote are found to be ineligible to do so.
March 31, 2006 – The Secretary of State announces that instead of changing his regulations or data matching standards, he’s proposing legislation to change one piece of the law so that if a county elections official submits a voter registration form without a driver’s license number on it, the form will be accepted as long as there is a match to only one record in the Department of Motor Vehicle files. County elections officials estimate this will address between 33% and 50% of the problem.
April 5, 2006 – The Secretary of State files a request to extend his emergency regulations, saying “… the need for changes or additions to the regulations may only become apparent once their functionality has been observed in the course of an actual election . . . it is in the best interests of the voters of this state to readopt the emergency regulations . . . and wait until after the June 6, 2006, election to begin the process of revising the regulations and implementing them on a permanent basis. If the regulations are not readopted, the Secretary of State will be out of compliance with HAVA and the November 2, 2005, interim compliance agreement with the Department [U.S. Department of Justice], resulting in the risk of legal action by the Department ...”
April 6, 2006 – The Senate Elections, Reapportionment & Constitutional Amendments Committee holds a three-hour hearing on the issue. The Secretary of State declines to appear at the hearing. A witness for the Brennan Center for Justice testifies that as a result of the Secretary of State’s regulations and data matching standards, California’s policy is “an unmitigated disaster that would disenfranchise thousands upon thousands of eligible voters.” She also states the Secretary of State cannot be sued for changing the regulations or data matching standards in a way that doesn’t comply with his agreement with the Bush Administration. He can only be sued for failing to comply with HAVA and 41 other states have adopted regulations and data matching standards that allow eligible voters to easily register to vote without violating the requirements of HAVA.
April 7, 2006 – The Secretary of State, in an e-mail sent to county elections officials, announces he is changing his data matching standards in one area. The change would allow people who submit a voter registration form with their driver’s license number on it (if the license was issued before December 2005) to be automatically registered by the Secretary of State’s computer system if the number matches a record in the Department of Motor Vehicles database using the first three letters of the person’s last name or their date of birth. Under the previous system, only the first three letters of a person’s name were used for the match, meaning people whose driver’s license was in a different last name (perhaps they’d gotten married), had spaces in their name the computer didn’t recognize (such as “de la Torre”), or have two last names (such as “Lam Chen”) were routinely rejected.
o April 18, 2006 – The Legislative Counsel of California issues a legal opinion concluding that nothing in state or federal law precludes the Secretary of State from changing his regulations or data matching standards to reduce the number of hurdles an eligible voter has to clear before being able to register to vote.
April 19, 2006 – The Secretary of State files a request with the Office of Administrative Law (OAL) to amend his emergency regulations to ensure that eligible voters who submit a voter registration form without a driver’s license number or the last four digits of their Social Security number, the individual will still be registered to vote and added to the rolls – as long as the Calvalidator computer system can find a driver’s license number through the DMV database that matches that voter. However, in light of the preliminary injunction handed down by a U.S. District Court in Washington state involving a law similar to the Secretary’s regulations, in appears that these changes don’t solve the larger constitutional question of whether it’s permissible to require any type of match.
August 1, 2006 – U.S. District Court in the Western District of Washington issues a preliminary injunction in the case of Washington Association of Churches, et al. v. Sam Reed to prevent the Washington Secretary of State from enforcing a state law requiring the state to match a potential voter’s name to the Social Security Administration database or the state’s Department of Licensing database before allowing that person to register to vote. The Washington State requirement is similar to the requirement adopted by California’s Secretary of State in his November 2, 2005, agreement with the Bush Administration’s Department of Justice.

http://www.californiachronicle.com/articles/viewArticle.asp?articleID=12079

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