Statement of Donita Judge Advancement Project Ohio Field Hearing on Voting Rights Before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights Cleveland, Ohio Monday, May 7, 2012 Chairman Durbin, Senator Brown and Congresswoman Fudge, thank you for the opportunity to provide a statement today about the potential barriers to the ballot in Ohio that threaten to undermine our democracy. My name is Donita Judge. I am Advancement Project s lead voter protection attorney for Ohio. Advancement Project is a national civil rights organization that advances universal opportunity and a just democracy. Since 2004, Advancement Project has had a Voter Protection Program in Ohio that works to eliminate barriers to voting through legal and legislative advocacy. Advancement Project has challenged barriers to the ballot in every federal election in Ohio since 2004. In 2004, Advancement Project intervened in DNC v. RNC, 1 which stopped the Republican National Committee from challenging voters of color based upon an illegal voter caging program. In 2008, Advancement Project uncovered the potential for challenges to 600,000 Ohio voters that would have resulted in these voters being removed from the voter rolls without due process. Advancement Project successfully advocated against such removal resulting in the Ohio Secretary of State issuing a directive requiring notice and hearing to voters before they are removed from the voter rolls. Most recently, Advancement Project has been engaged in legislative advocacy addressing proposed changes to the state s election code, including advocacy opposing Ohio HB194 and SB 295. Ohio HB 194 is a voter suppression bill that is currently on the November 2012 ballot; SB 295 has been introduced by Ohio legislators to repeal HB 194. 1 DNC v. RNC, No. 81-3876 (DRD)(NJ 2006).
This backdrop on Advancement Project s voter protection work in Ohio provides us with significant knowledge of potential barriers to the ballot. We welcome this opportunity to share our concerns with you. True the Vote A well-coordinated effort stands to threaten and intimidate Ohio voters, in advance of and on Election Day, which could lead to massive voter suppression at the polls in November 2012. In 2009, Catherine Engelbrecht, head of the Houston Tea Party group King Street Patriots, created True the Vote (TTV), an organization designed to turnout a legion of volunteer poll watchers. Their initial effort resulted in a campaign of trained poll watchers placed at strategic polling sites in Harris County, Texas. TTV used pattern recognition software to sort the voter registry to identify precincts for voter challenges. In 2010, they used this process to target Texas 18th Congressional District, which contains much of inner-city Houston and is 43.5 percent Hispanic and 36.1 percent Black. Leading up to the 2010 general election, TTV trained and registered over a thousand volunteers as poll watchers in predominantly minority neighborhoods in Harris County. During early voting, the Houston Chronicle reported that TTV poll watchers in predominantly minority neighborhoods were harassing voters by blocking or disrupting those waiting in line or hovering around people as they were voting. This year, utilizing the pattern recognition software used in Texas in 2010, TTV launched a similar campaign in Ohio to validate existing voter registration lists. TTV is partnering in this effort with Judicial Watch 2, the Ohio Voter Integrity Project 3 and the Cuyahoga Valley Republicans (CVR) 4 to train and register volunteers to scrub voter rolls of individuals who should not be registered to vote in Ohio in the 2012 general election and to train Ohio volunteers as poll workers. 5 Based on our experience, we believe that this effort is likely to both intimidate voters of color in Ohio, and it may also improperly prevent eligible registered voters from casting a ballot due to overly aggressive and unverified eligibility challenges. Judicial Watch On February 6, 2012, Judicial Watch on behalf of TTV sent a letter to Ohio Secretary of State Jon Husted regarding apparent violations of Section 8 of the National Voter Registration Act, 42 U.S.C. 1973gg-6. 6 In this letter, Judicial Watch alleged that the Ohio statewide voter registration database appears to contain the names of ineligible voters who may no longer reside in the State of Ohio. Judicial Watch requested that Ohio provide information on steps they intend to take to comply with Judicial Watch s request to remove ineligible voters from the list. Additionally, Judicial Watch threatened a potential lawsuit under the National Voter Registration Act (NVRA), if Ohio failed to correct these violations within 90 days of receipt of the February 6 letter. Id. 2 http://www.judicialwatch.org/projects/2012-election-integrity-project/. 3 See http://ohiovip.org. Ohio VIP is involved in a non-partisan research effort that partners with True the Vote (TTV) to validate existing voter registration lists utilizing the software developed by TTV. All researchers are trained by TTV. 4 http://cuyahogavalleygop.com/node/600. 5 Id. 6 Judicial Watch letter of Feb. 6, 2012 (on file with Advancement Project).
The Ohio Secretary of State s Chief Legal Counsel replied to Judicial Watch s letter on March 2, 2012, and provided the procedures that Ohio county boards of elections follow to maintain accurate voter rolls. These procedures require Ohio to perform an extensive and exhaustive program to remove ineligible voters from the list. By law, Ohio is required to perform this list maintenance in odd years, and it was conducted in 2011. Nothing in Ohio law or the NVRA requires that Ohio voters be purged from the voter list because Judicial Watch alleges that voters remain on the rolls that may have moved. In fact, the NVRA provides specific guidelines under these circumstances. Specifically, the NVRA prevents states from removing voters from the voter registration list simply because a voter has moved unless the voter confirms, in writing, that he has changed his address or he has failed to respond to a forwardable notice verifying his address and has not voted in two federal elections or made any contact with the election officials during this period. 42 U.S.C. 1973gg-6(d). We believe that Judicial Watch s efforts could form the basis for improper voter challenges before and at the polls on Election Day. Ohio Election Integrity Project Ohio Election Integrity Project (Ohio VIP) is partnering with TTV to recruit volunteer researchers to identify and submit inconsistencies in voter registrations to county boards as challenges and to recruit and train thousands of volunteers as poll workers for the November 2012 election. These poll workers will be stationed in polling locations throughout the state. Ohio s pre-election Day challenge law require that individuals making application for pre- Election Day correction of the precinct list or challenges to a voter be a registered voter in that county. Additionally, Ohio law provides that is not enough to bring forth a list of voters who you believe should not be on the list-- instead challengers must have clear and convincing evidence 7 that the voter should be removed from the rolls. This standard was established in a directive issued by the SOS in 2008. 8 We, therefore, recommend that any pre-election Day challenges brought to remove voters from the voter rolls be based on the challenger s personal knowledge. Ohio VIP s collaboration with TTV to recruit poll workers for Election Day provides the group with a second opportunity to scrub the voter rolls by challenging voters eligibility to vote on Election Day. Since poll workers in Ohio are the only persons who can mount challenges in the polls against Ohio voters on Election Day, it is not difficult to imagine the chaos that could erupt if VIP trains and places significant numbers of poll workers with an affirmative agenda related to voter challenges in the polls on Election Day. It is the Election Day challenges that may have the greatest impact and chilling effect on Ohio voters. Challenges at the polls could lead to considerably long wait times and long lines a situation with which Ohio voters and election officials are all too familiar by engaging in a timeconsuming task of re-verifying a voter s eligibility when challenged. Voters challenged at the polls who are unable to resolve the challenge are required to cast provisional ballots. Ohio has a troubled history of casting and not counting significant numbers of provisional ballots, many 7 See Middleton v. McGee, 39 Ohio St., 3d 284, 286, 530 N.E. 2d 902 (1988) (stating that clear and convincing proof cannot be satisfied by mere conjecture or speculation). 8 Ohio Secretary of State Directive 2008-79. Required Procedures in Administering Voter Challenge Statutes R.C. 3503.24 and 3509.19. Sept. 5, 2008.
disproportionately cast in urban areas and by people of color. We therefore believe this initiative could potentially disenfranchise many eligible Ohio voters. A recent analysis by the Cincinnati Enquirer of the November 2011 general election concluded that Ohio s problems with provisional ballots are only getting worse. The number of provisional ballots cast in this election was greater than the number of provisional ballots cast in the November 2009 election. 9 More disconcerting is that the number of provisional ballots counted was smaller in the 2011 election than in 2009. Secretary Husted recently acknowledged that 2012 will see an increase in provisional ballots and provisional ballots may actually determine the outcome of the race. A lawsuit surrounding the counting of provisional ballots from a 2010 juvenile judge seat in Hamilton County was recently decided one year, five months and 25 days after voters cast their ballots. 10 Cuyahoga Valley Republicans The Cuyahoga Valley Republicans (CVR) have organized a team of volunteers, and working in concert with TTV, they are seeking additional volunteers to scrub Ohio voters rolls to remove individuals they allege should not be registered to vote in Ohio and in the November 2012 election. This aggressive scrub effort could result in the removal of valid and eligible voters from the rolls. * * * Advancement Project is extremely concerned about and opposes any attempts to suppress the vote in Ohio initiated by Judicial Watch and/or TTV campaigns that scrub the Ohio voter lists prior to the November 2012. Thus, any attempts by Ohio election officials to remove voters from the voter list at the request of Judicial Watch and/or TTV in violation of the NVRA will be met with strong resistance by Advancement Project on behalf of Ohio voters. Additionally, Advancement Project is extremely concerned with the potential for widespread challenges on Election Day by poll workers trained by VIP and the rippling effect of substantial numbers of provisional ballots being cast and potentially not counted. Advancement Project recommends that any remedial poll worker training conducted by VIP be reviewed and approved by Ohio election officials to guarantee that the training program is consistent with Ohio law. We also recommend that Ohio officials review and revise as needed their poll worker training related to the processes for voter challenges and the appropriate responses to them. The resulting impact of these actions, singularly or collectively, by Judicial Watch, True the Vote, Ohio Voter Integrity Project, and Cuyahoga Valley Republicans will have a chilling and intimidating effect on Ohio voters, particularly voters of colors.. * * * 9 http://www.pewstates.org/research/analysis/provisional-ballots-in-ohio-85899380042. The Pew Charitable Trusts. Provisional Ballots in Ohio, April 3, 2012. 10 Hunter v. Hamilton Cty. Bd. of Elections, Case No. 12-3224 (6th Cir. 2012).
Thank you for your kind consideration of my statement and for ensuring that all Ohio voters have the opportunity to vote, have their vote counted and receive equal protection under the law. Respectfully submitted, Donita Judge, Esq.* *Licensed in New Jersey and District of Columbia