Illegal Voter Purge Programs Pose Potential Threat to Michigan Voters
Voter Protections Newsletter Volume 5 Issue 1
January 22, 2010
DETROIT—Problematic electoral practices that are the subject of a lawsuit in Michigan could threaten the franchise for thousands of voters in the 2010 midterm congressional elections if the U.S. District Court doesn't rule in favor of the plaintiffs. Advancement Project, through its representation of several nonprofit student and civil rights groups as co-counsel in the litigation, is attempting to keep Michigan officials from resuming illegal purge programs that violate federal election law by needlessly removing voters from the rolls.
The plaintiffs—the United States Student Association Foundation, the ACLU, the ACLU of Michigan, and the Michigan State Conference of NAACP Branches—filed suit in federal court in September 2008 to end the illegal practices. In the case, Advancement Project argued that state officials were unlawfully removing thousands of Michigan voters per year from the rolls, in violation of the National Voter Registration Act of 1993 (NVRA). The state claims that it engages in these purging practices to maintain an accurate voting list but hasn't acknowledged that its maintenance disenfranchises voters, leads to errors in the voting list, and violates federal law.
Under one of the illegal programs that led to the lawsuit, the state immediately cancels the voter registrations of Michigan voters who obtain driver's licenses in other states, without issuing the appropriate confirmation of registration notices. The other program immediately cancels the voter registration of any voter whose original voter registration ID card is returned by the post office as undeliverable.
In October 2008, U.S. District Judge Stephen J. Murphy III ruled that both the state's voter removal programs violated the NVRA, and he issued an immediate preliminary injunction against the returned ID card rule. The state later suspended the out-of-state driver's license rule pending the conclusion of the lawsuit. The U.S. Court of Appeals for the Sixth Circuit denied the state's emergency motion to dissolve Judge Murphy's injunction, which remains in place.
Months ago, the state filed a motion to dismiss on the ground that none of the parties could point to any of their members or constituents being potentially endangered by the purge practices. At a recent hearing on that motion before Judge Murphy on Dec. 3, Advancement Project Senior Attorney Bradley E. Heard argued strenuously on behalf of the plaintiffs that there was ample evidence of actual and potential voter disenfranchisement among the plaintiffs' members and constituencies to give the parties legal standing to challenge the purge practices.
The plaintiffs' evidence revealed that at least two confirmed students at the University of Michigan at Ann Arbor—and likely several more statewide—were nearly denied the right to vote after being unlawfully removed from the voter rolls prior to the November 2008 presidential election. One U M–Ann Arbor senior, Natasha Pacheco, testified in her declaration that she had been a registered and active voter in Michigan since 2006, but that she had unknowingly been removed from the rolls shortly before the 2008 presidential election, after obtaining a Texas driver's license. (Her father resided in Texas, and she used that address as a permanent mailing address.) Pacheco did not discover that she had been removed from the rolls until she showed up to the polls on Election Day and did not find her name on the precinct list. Ultimately, poll officials had to consult with the main City Clerk's Office before discovering the error and allowing her to cast a ballot. Ann Arbor officials claim that Pacheco's ballot did count in the election, but her official voter history record indicates that she did not vote on Nov. 4, 2008.
Another U M–Ann Arbor student, David Tigges, similarly arrived to the polls on Election Day to find that he, too, had been unknowingly taken off of the voter rolls in Ann Arbor after his original voter registration ID card was returned in the mail as undeliverable. City officials cancelled Tigges' registration, without notice, approximately two weeks after initially approving his application in September 2008, when his ID card was returned by the post office as undeliverable. As many who have lived in dormitories and apartments can attest, misdirected mail addressed to residents of multiple-dwelling buildings is an all-too-common occurrence—but under these circumstances, it can result in a person being immediately disenfranchised without notice. Tigges was forced to cast a provisional “envelope” ballot, which Ann Arbor officials claim to have ultimately counted several days after the election; however, like Pacheco, Tigges' official voter history record indicates that he did not vote on Election Day.
Pacheco and Tigges are merely the tip of the iceberg, according to the plaintiffs. Based on their investigations thus far, the plaintiffs believe that approximately 111 students at the six Michigan colleges and universities where USSAF has a presence were potentially impacted by the state's two purge practices. The Michigan ACLU reports that their preliminary investigation has revealed at least 10 of their members, and probably several hundred, were potentially impacted. And the Michigan NAACP says that more than 900 potentially affected current and former members showed up in their preliminary investigation.
Furthermore, Elections Director Christopher M. Thomas previously admitted in an affidavit filed in the case that approximately 72,000 voters a year are purged as a result of the out-of-state driver's license rule and that approximately 5,000 voters each year are purged as a result of the returned ID card rule.
If the federal court does not find in the plaintiffs' favor, the state would be free to resume its two currently suspended purge programs, which would put thousands of students and other Michigan residents at risk of being removed without notice from the voter rolls.
“We've known from Day One that Michigan's unlawful purging programs have devastating real-world consequences. The experiences of these University of Michigan students, along with others only further illustrate the point,” Heard said. “The State of Michigan's argument that these organizations don't have legal standing to challenge these claims is preposterous and has already been debunked by the district court and the Sixth Circuit [U.S. Court of Appeals]. We have confidence that the district court will again reject this halfhearted procedural attempt on the part of the state to avoid a final decision in plaintiffs' favor on the merits of these claims.”
