Update: Judge throws out Van Hollen voter registration lawsuit (with decision transcript)

Doyle applauds decision; AG wants appeal

Steve Elbow  —  10/23/2008 5:42 pm

Wisconsin Gov. Jim Doyle today lauded a Dane County judge's decision to throw out a lawsuit by Republican Attorney General J.B. Van Hollen that would have required municipal clerks to cross-check voter registrations of about 1 million newly registered voters across the state.

"Wisconsin has a strong progressive tradition of protecting our right to vote," Doyle, a Democrat, said in front of the steps of the state Capitol, speaking from a podium bearing a Democratic Party of Wisconsin placard.

In dismissing the lawsuit, Judge Maryann Sumi Thursday ruled that no federal or state law exists that makes cross-checking voter registrations necessary for a citizen to vote. (Read the transcript of Sumi's decision.) Van Hollen sought to force state election officials to verify before the Nov. 4 election the eligibility of voters registered since Jan. 1, 2006, when federal law required states to compile voter lists as part of the Help America Vote Act.

Van Hollen filed the lawsuit on Sept. 10 seeking to have the court order the state's Government Accountability Board to cross-check voter registration information with Department of Transportation, death and felony records dating back to Jan. 1, 2006, when the federal Help America Vote Act went into effect. The Government Accountability Board ordered the checks to be done for those who registered since Aug. 6 of this year, when the statewide voter registration database was up and running.

The Government Accountability Board has said the lawsuit could have required municipal clerks around the state, already busy with election issues, to check as many as 1 million voter registrations.

The lawsuit drew stark lines between the state political parties. Van Hollen, co-chair of the state Republican presidential campaign, was supported in the lawsuit by the state Republican Party, which has sought a number of voter identification measures, including requiring the heavily Democratic Milwaukee area to show IDs at the polls.

Democrats opposed the lawsuit, saying it was a partisan attempt to disenfranchise voters.

Doyle wouldn't say outright that Van Hollen's lawsuit was politically motivated. But he said the lawsuit mirrored other Republican efforts around the country to verify newly registered voters against other state databases, including an effort struck down by the U.S. Supreme Court last week in Ohio.

"The Government Accountability Board, not the Republican Attorney General, has the responsibility to supervise elections," he said.

Van Hollen, in a prepared statement, maintained that his goal was to provide "an accurate statewide voter list" that complies with state and federal laws.

"I believe today's decision was an erroneous interpretation of the law," he said. "When a lower court gets the law wrong, parties appeal to a higher court, and that's what I will do."

With only 12 days until the election, there is little time for the appeal. Van Hollen spokesman Kevin St. John said the AG's office will try to "move the process along as quickly as we can."

Sumi ruled that nothing in state or federal law requires that voter registration information be checked against other state records.

"Nothing in state or federal law requires that there be a data match as a prerequisite for a citizen's right to vote," she said in dismissing Van Hollen's lawsuit.

Therefore, she said, "The court is without the authority to create such a requirement."

She also said he had no standing to file the suit because the U.S. attorney general is charged with enforcing the Help America Vote Act.

Had Van Hollen's lawsuit moved ahead, clerks could have been required to follow up on mismatches, sending letters or making phone calls to try to resolve the discrepancies. Initial checks have numbered in excess of 20 percent, mostly due to typographical errors in names or mismatches in driver's license and Social Security numbers.

Sumi also faulted Van Hollen for bringing case to court without exhausting other means of remedy. The state has devised a process to address voting complaints, she said, which consists of filing a complaint with the GAB, which would then hold a trial-type hearing on the merits of the complaint. Van Hollen, instead, took the case straight to court.

"He did not use the process," she said.

State law, she said, allows the state discretion on how to set up the complaint process. She also said that the laws require only that the state keep and maintain a voter list, but doesn't specify how that should be done.

The ruling validates the contention by Government Accountability Board attorney Lester Pines, who said in court Thursday that Van Hollen was seeking to decide election rules, a power that state law has handed the GAB.

"This is a breathtaking assertion of power," he said of Van Hollen's attempt to force the registration checks.

State Democratic Party Chairman Joe Wineke said the ruling takes away Republican poll watchers' ability to challenge voters at the polls.

Republicans, he said, "played their card. They lost."

Sumi also made mention of a Republican Party request to order ID checks in Milwaukee, where the party contends widespread voter fraud occurred after workers for voter registration groups, mostly Democratic-leaning, falsified registration records. Those groups, most notably the Association of Community Organizations for Reform Now (ACORN), have said those workers merely made up information for registration cards to meet quota guidelines. The group flagged those registration cards and turned in those workers.

Richard Saks, who intervened in the case on behalf of the NAACP of Milwaukee, said the requirement was discriminatory and would have disenfranchised a large number of poor and minority voters in Milwaukee, a Democratic stronghold.

Sumi said there was no evidence of criminal activity in those cases.

Sumi's decision comes on the heels of a U.S. Supreme Court opinion last week lifting a restraining order awarded by a lower court to the Ohio Republican Party that ordered the Ohio secretary of state to provide a list of all newly registered voters whose driver's license and Social Security numbers didn't match their names.

Sumi said the decision had implications to Van Hollen's lawsuit, and she said it caused the state GOP to "change its focus" in arguments Thursday.

Steve Elbow  —  10/23/2008 5:42 pm