COUNTDOWN 2008: Flagged voters can cast ballots

Georgians whose eligibility to vote has been questioned must be allowed to cast a ballot in the Nov. 4 election, a panel of federal judges ruled Monday.

The court also ordered Secretary of State Karen Handel to “make diligent and immediate efforts to notify, in a uniform manner, every person whose voter registration presently remains flagged.”

Those voters must be told that they can vote by a “challenged ballot,” if necessary, and that there is a discrepancy in their registration information, the court said.

Challenge ballots are typically cast on paper and are set aside and not counted until the discrepancy is cleared up.

Handel and the voting rights groups that sued her all welcomed the court’s ruling.

As of last week, the Secretary of State’s Office had questioned the citizenship of 4,538 prospective voters through a new system of verifying voters’ identity. Another 50,378 have been flagged because some of their voter registration information doesn’t match other government databases

The judges said in their order that Handel should have had the new system approved by the U.S. Department of Justice for review before implementing it, as required under the Voting Rights Act of 1965. That process is under way, after the Justice Department asked the state to submit it for review.

The court also said that no names can be removed from voter lists unless a person admits, in writing, that he or she is ineligible to vote.

The ruling grants a temporary injunction requested by civil rights groups representing a Kennesaw State University student whose citizenship had been mistakenly questioned by registrars in Cherokee County. If the Justice Department approves the state’s system, the injunction ends. The Justice Department has up to 60 days to make a decision.

The judges said they tried to create a solution that protects the rights of voters who were mistakenly flagged by the state’s system and also ensures that only eligible voters take part in the election.

The order was written by Judge Stanley Birch of the 11th U.S. Circuit Court of Appeals and U.S. District Court judges Jack Camp and Bill Duffey. All three were appointed by Republican presidents: Birch by President George H.W. Bush, Camp by President Ronald Reagan and Duffey by President George W. Bush.

Handel said in an interview Monday evening that the court said she was correct to verify voters’ identification and citizenship.

“They clearly agreed with what we advised the counties,” Handel said.

She agreed that it’s vital that the state both allow eligible voters to cast ballots and to ensure that only those eligible participate in elections.

“Any voter who comes to the poll should be given the opportunity to vote,” Handel said, even if they have to cast a provisional paper ballot.

Asked whether she agreed with the court that the state’s verification system should have been submitted to the Justice Department in advance, Handel said state Attorney General Thurbert Baker is responsible for preclearance issues with the Justice Department.

Baker and his spokesman could not be reached for comment. Baker’s office has represented Handel in the suit.

The Georgia lawsuit is one of several nationwide as some groups seek to drive voter registration and participation to new levels and others try to protect against perceived abuses and potential election fraud.

The civil rights groups contended that the secretary of state’s database matching system amounted to an illegal, systematic purging of eligible voters from voter rolls in the final weeks leading up to the elections.

They were pleased with the decision, said Laughlin McDonald of the ACLU Voting Rights Project, because it ensures that every flagged voter will be able to cast a ballot.

McDonald said the civil rights groups also were pleased “that nobody will be automatically purged from the voter lists and that all flagged voters will be given an opportunity to resolve their challenges.”

Handel has defended the verification system, saying it was mandated by the Help America Vote Act of 2002 and helps ensure the integrity of the election.

The court ordered Handel to take immediate action to contact voters whose citizenship has been questioned and let them know they can vote.

Her office must also contact all 159 counties in writing before Nov. 4 and offer “uniform guidance explaining the operation of existing challenged balloting requirements of state law,” the court said.

Voters who show up at the polls and discover their status has been questioned will be allowed to cast challenge ballots, which are to be set aside. The counties would then follow state rules for dealing with challenged ballots. And, the court said, those filing challenged ballots must be notified of what is necessary to resolve a question of their citizenship.

For example, the order said, a voter can present, in person or by fax, a document that proves citizenship, within a certain number of days after Election Day.

Handel also must consult with the Justice Department to determine whether there are any additional actions that can be taken to “reasonably ensure that persons who are actually eligible to vote” can do so, even if they were flagged by the state’s system, the judges said in their 27-page order.

Handel said Monday her office was working with the Justice Department.

Richard L. Hasen, a professor specializing in election law at Loyola Law School in Los Angeles, has followed the case and said the judges appeared to be “splitting the baby.”

“They crafted a politically palatable situation,” he said.