By Steven Rosenfeld
Published July 26th 2007 in AlterNet
Florida's actions were not unique. In Ohio, where the 2004 presidential election lingered as its Electoral College votes were challenged in Congress, Ohio's Republican-majority legislature passed a series of election reforms, including tough new rules and penalties for voter registration drives. In 2006, that law stopped the Association of Community Organizations for Reform Now, or ACORN, and community and church groups from registering voters in the state.
"In Florida, it absolutely shut down voter registration by all groups going up through the primary election of 2006," said Wendy Weiser, deputy director of the Brennan Center, a New York-based public-interest law firm that challenged the Florida and Ohio laws. "In Ohio, before there was an injunction in the case, voter registration was halted."
Both Florida's and Ohio's voter registration laws were challenged in court and were enjoined, or suspended, before the 2006 election, allowing voter registration to resume. Federal judges found they violated First Amendment rights and were hurting efforts to sign up new voters. But the trend of regulating voter registration drives did not end there. Between the 2004 election and today, six other states adopted similar laws -- Colorado, Georgia, Maryland, New Mexico, Missouri and Washington -- and like-minded bills have been proposed in New Jersey, Arizona and elsewhere, according to the Brennan Center.
Not all of these laws were passed by Republican partisans seeking political revenge. But the line between ensuring an accurate registration process and intentionally suppressing voters is very thin, according to academics, opponents and supporters of these laws. On Wednesday, July 23, the Senate Rules Committee will hold a hearing on sections of an election reform bill (The Ballot Integrity Act of 2007 or S. 1487) that would ban states from passing laws that would negatively impact voter registration drives.
"I think it is a real serious concern," said Dan Tokaji, assistant professor of law at Ohio State University and an election law expert. "There are constitutional rights, free speech rights and petition rights at issue. What has a lot of voting rights activists concerned is states with GOP-dominated legislatures are going to put a lot of voter registration groups out of business."
American democracy depends on private groups more than the government to register voters. As a result, registration efforts have always been sources of political friction.
"The attempts to restrict registration and attempts to smear groups that attempt to register voters comes from people who don't think those voters are likely to support them," said Kevin Whelan, ACORN communications director. "I think there is another response to people who don't like to see a lot of minority voters coming onto the rolls. They could campaign for those votes."
"It was done to address real needs," said William Todd, president of the Ohio chapter of the Republican National Lawyers Association, speaking of his state's voter registration reforms, which were since found to be unconstitutional. "Ohio was not alone in not having an updated election code. People hadn't looked at some of those laws in 50 years."
"There were two stories that stuck in my mind," he said, recalling lobbying for the laws. "Certainly there were a handful of fraudulent registrations here and there. The other thing was the state organization of election officials was complaining that there were certain groups that would save registration cards for months and then dump them on the boards of election at the last minute. Because they were brought in in such an untidy manner, the boards couldn't verify them and process them, and people lost the opportunity to vote."
ACORN's voter registration efforts have been criticized in more severe tones by the GOP and their allies -- especially in the heat of a close election. Between 2005 and 2006, the group registered 1.6 million voters in 23 states, Whelan said. In Ohio in 2005, ACORN and other voter registration groups working in Ohio were sued by "The Free Enterprise Coalition," a GOP-funded group that promoted voter fraud concerns and disappeared after litigation began, causing the suit to be dismissed. However, in other states some problems were found with some of ACORN's voter registration forms, although the politics surrounding the most high-profile example is murky at best.
In Kansas City, Mo., four ACORN temporary workers were indicted on felony charges of falsifying seven voter registration forms just days before the 2006 midterm election. ACORN had alerted state authorities and had been cooperating with the FBI, Whelan said, but the interim U.S. attorney, Bradley Schlozman, went against established Justice Department procedure and announced the indictments. While the ACORN workers later pleaded guilty, Whelan said the number of voter registrations affected was "less than a fraction of a fraction of one percent" of all its registrations nationwide. Still, that did not stop the Republican Party from accusing Democrats of trying to steal the election, the very political meddling the Justice Department policy was intended to prevent.
Republicans, for their part, also had problems with submitting fraudulent voter registrations. In late October 2006, just before Election Day, 11 volunteers working for the Republican Party of Orange County, Calif., were charged with registration fraud after they submitted registration forms where Democratic voters were misidentified up as members of the Republican Party. And in Nevada, a firm that the Republican National Committee hired to register voters, Voters Outreach of America, was found to be throwing out registrations for Democrats while turning in forms for Republicans.
But election law experts say problems like these, whether in Kansas City, Orange County or Las Vegas are by far the exception, not the rule. Moreover, they say new state laws passed since 2004 that have already impeded hundreds of thousands of voters from registering are a much bigger concern and of an entirely different magnitude.
"The numbers are enormous," said the Brennan Center's Wendy Wieser, speaking of the voter registration restrictions that were in effect in Florida and Ohio in 2006. "But they weren't as effective as they were intended to be. They were thrown out. They were effective when they were in place."
"They got into a huge fight in Ohio on whether the regulations were onerous and punitive," the Republican National Lawyers Association's Todd said. "But if you register a person to vote, you have an obligation to turn the registration in, and make sure they are registered and can vote."
Ohio State's Dan Tokaji said the Senate Rule Committee's hearing was timely, because both political parties are now jockeying for position before the next presidential election.
"It is a perfect time to be talking about this," he said. "I expect there would be all kinds of efforts by other states and GOP-dominated legislatures to regulate voter registration between now and 2008."
Steven Rosenfeld is a senior fellow at Alternet.org and co-author of What Happened in Ohio: A Documentary Record of Theft and Fraud in the 2004 Election, with Bob Fitrakis and Harvey Wasserman (The New Press, 2006).