Friday, September 12, 2008

Brunner v. GOP, Absentee Ballot Edition

Secretary of State Jennifer Brunner is again under attack from the state Republican party. Today the occasion is her decision regarding applications for absentee ballots prepared by the McCain/Palin campaign for supporters. Brunner ruled that if voters have not checked a box next to a statement that the applicant is a qualified elector, the application is not valid.

Abentee ballots are governed by section 3509.03 of the Ohio Revised Code, which states in part:

    Except as provided in section 3509.031 or division (B) of section 3509.08 of the Revised Code, any qualified elector desiring to vote absent voter’s ballots at an election shall make written application for those ballots to the director of elections of the county in which the elector’s voting residence is located. The application need not be in any particular form but shall contain all of the following:

    (A) The elector’s name;

    (B) The elector’s signature;

    (C) The address at which the elector is registered to vote;

    (D) The elector’s date of birth;

    (E) One of the following:

    (1) The elector’s driver’s license number;

    (2) The last four digits of the elector’s social security number;

    (3) A copy of the elector’s current and valid photo identification, a copy of a military identification , or a copy of a current utility bill, bank statement, government check, paycheck, or other government document, other than a notice of an election mailed by a board of elections under section 3501.19 of the Revised Code or a notice of voter registration mailed by a board of elections under section 3503.19 of the Revised Code, that shows the name and address of the elector.

    (F) A statement identifying the election for which absent voter’s ballots are requested;

    (G) A statement that the person requesting the ballots is a qualified elector;

    (H) If the request is for primary election ballots, the elector’s party affiliation;

    (I) If the elector desires ballots to be mailed to the elector, the address to which those ballots shall be mailed.
At issue, obviously, is subsection G in bold. The McCain campaign topped their application with a legend in (est.) 20 point type "I am a qualified elector and would like to request an absentee ballot for the November 4, 2008 election." The type for this heading is larger than any of the information below. And the infamous check box appears at the front of it. Cincy Inquirer has posted a pdf of the form so you can follow along.

The GOP argument is that by signing the form the applicant makes the statement that he/she is a qualified elector. Brunner counters that because there is a check box, the implication of not checking is that the statement isn't true.

Generally speaking, I'm inclined to err on the side of voting and, based on her political persuasion, I expect Brunner is as well. But the legislature has spoken, and that isn't their inclination. With the passage of Ohio's voter ID law, the legislature has added a different guiding principle -- combatting the voter fraud chimera. Guiding principle like this serve as a touchstone for interpreting a statute -- if you know what was on the legislature's mind, you can interpret the statute in the way that best achieves that end.

Viewed in this light, the required statement of eligibility to vote serves two purposes. One is to put the applicant on notice that he should only be getting an absentee ballot; the other is to make it easier to prosecute Rampant Voter Fraud.® When applicants don't check the box in the form as constructed, neither purpose is served. We don't know that applicants have gotten their notice because they may well have blown past the header. And as a prosecutor, I wouldn't be very confident that I could prosecute someone for falsely claiming that he was an eligible voter when he doesn't check the box saying that he is an eligible voter.

And no, the signature doesn't cut it. Generally when a form requires a signature to certify something, the statement appears directly over the signature line and explicitly states the effect of the signature: "By signing below I certify that . . . etc." Without that, a prosecutor can't prove that a defendant knowingly made false statements, which is the standard for prosecuting fraud.

Sadly, the papers, especially the Inquirer, seem to be accepting the GOP's line that Brunner is making a technical ruling on a close question. Her ruling is right down the middle of the law. With the check box unchecked the application includes no statement that the applicant is a qualified elector. If Brunner had made the opposite ruling on a Dem application, you would hear weeping wailing and gnashing of teeth from the right.

Not to mention the hypocrisy. The line we hear over and over again from the GOP on voting is that if an elector makes a mistake so be it, his fault, if you want to vote, be responsible. But now it's their voters who can't negotiate the maze, so it's all someone else's fault. As happens so often, conservatives are for personal responsibility until they are against it.


Brant T. Lee said...

SO the question is, which is better evidence that a person may not be eligible to vote: 1) their failing to check the box next to "I am a qualified elector," or 2) mail addressed to them from the county board of elections being returned?

Anonymous said...

Neither. Ohio elections law requires that an early voter must state that he or she is a qualified elector. There is no wiggle room there. The legislature decided that, with absent voter's ballot requests, the presumption is that a person is NOT a qualified elector unless the applicant says otherwise. Since McCain included a check box by the statement, the voter must do something to affirm the statement.

Mail can be returned for any reason -- a typo at the board, a mistake at the post office, a soldier on active duty with his/her mail forwarded. Here, Ohio law presumes a person is an eligible voter unless or until a challenger proves otherwise with clear and convincing evidence.

Anonymous said...

If I were the McCain campaign, I'd be feverishly spending more of my efforts on circulating the SoS absentee ballot request forms, and thanking the SoS for having counties notify potential voters that they need to resubmit their requests that were submitted incorrectly. While there are issues that I'm in disagreement with Brunner on, I don't suggest that candidates buck the system. Bucking the system is a hazard I, if I were the candidate, wouldn't want to risk. Brunner is the system, so just follow it, and, like I said, thank Brunner for at least directing the counties to notify those whose submissions were incorrect and inviting them to resubmit their absentee ballot request in the correct fashion.

Anonymous said...

Brunner has been overruled: