General Michael B. Mukasey
U. S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530-0001
Dear General Mukasey:
We write regarding enforcement of the Help America Vote Act of 2002 (HAVA). As you know, Ohio and other states are in the midst of carrying out their obligations under Section 303 of HAVA in the face of tremendous increases in voter registration. This surge in registrations is a healthy trend in a democracy.
We are strong supporters of HAVA. As you know, the purpose of HAVA is to ensure that the votes of all eligible voters are counted. We are concerned that complaints about the administration of HAVA in Ohio are designed to reduce the number of legitimate votes that are cast and counted in our state.
It is hard to find another explanation for complaints that are filed with only a few days remaining before the election. To comply with HAVA, former Ohio Secretary of State Kenneth Blackwell, a Republican, instituted a voter registration database, known by the acronym SWVRD, in 2006. The State continues to maintain the SWVRD in accordance with federal and state law.
No complaints concerning its implementation or operation were received by the Secretary of State’s office until the Ohio Republican Party initiated litigation on September 26, 2008. The lawsuit sought to compel the Ohio Secretary of State to implement new standards for the SWVRD – standards that are not required under either HAVA or Ohio law. The Supreme Court of the United States recently issued a decision that vacated a temporary restraining order that had directed the Secretary to institute additional procedures under Section 303 of HAVA.
Since the Supreme Court’s decision on October 17, 2008, the case was refiled in state court and then dismissed by the plaintiffs. These proceedings reinforce our understanding of Section 303, which required states to create a system to keep a permanent record of voter registrations and to ensure that localities are able to share and update information regarding voters, in particular, those that move. We are aware of no evidence that indicates the state is operating in anything but a uniform and nondiscriminatory manner. Absent these grounds, the involvement of the Department of Justice is unnecessary as HAVA specifically recognizes that implementation of the act is to be left to the states.
Ohio’s eighty-eight (88) county boards of elections are presently verifying thousands of new registration and voter registration change of name and residence updates in accordance with state and federal requirements. These updates are being processed in addition to the substantial preparations that must be made in anticipation of Election Day. The creation of another process to verify new registrations is unnecessary and has the potential to create confusion and reduce voter turnout. As Ohio saw in the last election, some voters will understandably turn away after waiting for hours on line.
With fewer than two weeks before the presidential election on November 4, 2008, the Department of Justice should resist partisan calls to interfere in the administration of elections in Ohio. According to testimony before the Senate Judiciary Committee last year, Republican members of Congress exerted pressure on the Justice Department two years ago to bring an indictment in a public corruption case against Democratic officials before the November election so as to influence its outcome. To his credit, the U.S. Attorney in question resisted this pressure. You should do no less.
The eyes of the nation are once again on Ohio in this critical election. We have confidence in the work that is being done by Ohio’s bipartisan group of election officials and by Ohio Secretary of State Jennifer Brunner. We respectfully request that you refrain from taking any action absent more compelling evidence than partisan political requests.
Zack T. Space
Congressman John Boehner (R-West Chester) today sent a letter to President Bush asking him to direct Attorney General Michael Mukasey and the U.S. Department of Justice to compel top election authorities in each state to comply with federal voting laws set out in the Help America Vote Act (HAVA). Click here to read the full letter.
“Unless action is taken by the Department immediately, thousands, if
not tens or hundreds of thousands of names whose information has not
been verified through the HAVA procedures mandated by Congress will
remain on the voter rolls during the November 4 election; and there is
a significant risk if not a certainty, that unlawful votes will be cast
and counted. Given the Election Day is less than two weeks away,
immediate action by the Department is not only warranted, but also
crucial,” Boehner wrote in the letter.
NOTE: On Oct. 17, 2008, the U.S. Supreme Court vacated two lower court rulings ordering Ohio Secretary of State Jennifer Brunner to comply with Section 303 of the Help America Vote Act. The Court ruled that the a private entity did not have the legal standing to enforce federal laws, leading Boehner to ask Attorney General Mukasey to compel Brunner to comply, which would mean providing access to a computerized statewide database, as required under HAVA. The Justice Department has not responded to Boehner’s letter.
Yesterday, the Associated Press reported that a Wisconsin state court dismissed a lawsuit filed by that state’s Attorney General “demanding that state elections officials confirm hundreds of thousands of voters’ identities before Election Day.”
Starting tomorrow, Ohio elections officials will begin removing ballots cast during the state’s early voting period from their identifying envelopes, eliminating any possibility of catching fraudulently cast ballots. Franklin County officials yesterday tossed out a dozen fraudulently cast absentee ballots, and the Hamilton County prosecutor has appointed an independent counsel to investigate more than 200 ballots on which the name or address does not match to state records. Prosecutor Joe Deters has asked that at least the questionable ballots remain in their identifying envelopes until voter registration information can be confirmed.
Boehner represents Ohio’s 8th District, which includes all of Darke, Miami and Preble counties, most of Butler and Mercer counties, and the northeastern corner of Montgomery County. He was first elected to Congress in 1990.