DNC v. Hobbs (Jan. 27, 2020 PDF
DNC v. Hobbs (Jan. 27, 2020 PDF
DNC v. Hobbs (Jan. 27, 2020 PDF
FOR PUBLICATION
v. OPINION
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*
Judge Berzon was drawn to replace Judge Graber. Judge Berzon has
read the briefs, reviewed the record, and watched the recording of oral
argument held on March 27, 2019.
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DNC V. HOBBS 3
SUMMARY**
Civil Rights
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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not carried its burden of showing that H.B. 2023 would have
been enacted without the motivating factor of racial
discrimination. The panel declined to reach DNC’s First and
Fourteenth Amendment claims.
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COUNSEL
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OPINION
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A. Out-of-Precinct Policy
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Id. at 47–48.
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Id. at 47.
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Rodden at 11.
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B. H.B. 2023
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The district court found, “The LaFaro Video did not show
any obviously illegal activity and there is no evidence that the
allegations in the narration were true.” Id. at 877. The video
“merely shows a man of apparent Hispanic heritage dropping
off ballots and not obviously violating any law.” Id. The
video “became quite prominent in the debates over H.B.
2023.” Id. The court wrote:
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Chisom, 501 U.S. at 391 (citing 79 Stat. 437). “At the time
of the passage of the Voting Rights Act of 1965, § 2, unlike
other provisions of the Act, did not provoke significant debate
in Congress because it was viewed largely as a restatement of
the Fifteenth Amendment.” Id. at 392. The Fifteenth
Amendment provides that “[t]he right of citizens of the
United States to vote shall not be denied or abridged by the
United States or by any State on account of race, color, or
previous condition of servitude,” and it authorizes Congress
to enforce the provision “by appropriate legislation.” U.S.
Const. amend. XV. In City of Mobile v. Bolden, 446 U.S. 55
(1980) (plurality), the Supreme Court held that the “coverage
provided by § 2 was unquestionably coextensive with the
coverage provided by the Fifteenth Amendment; the
provision simply elaborated upon the Fifteenth Amendment.”
Chisom, 501 U.S. at 392. That is, the Court held that proof of
intentional discrimination was necessary to establish a
violation of Section 2. Id. at 393.
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Voters, the Fourth Circuit held that the district court had
clearly erred in finding that the results test had not been
violated by North Carolina’s elimination of same-day
registration, and by North Carolina’s practice of wholly
discarding out-of-precinct ballots. League of Women Voters,
769 F.3d at 245–46 (considering Senate factors one, three,
and nine).
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The literacy test was used for the next sixty years. The
year it was introduced, Hispanic registration declined so
dramatically that some counties lacked enough voters to
justify primaries. Berman at 12. One county had recall
campaigns because enough Hispanic voters had been purged
from voting rolls to potentially change the electoral result.
Id. Arizona would use its literacy test not only against
Hispanics, but also against African Americans and, once they
became eligible to vote in 1948, against American Indians.
The test was finally repealed in 1972, two years after an
amendment to the Voting Rights Act banned literacy tests
nationwide. Id.
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Berman at 14–15.
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The fact that each party in Arizona “has led the charge in
discriminating against minorities” does not diminish the legal
significance of that discrimination. Quite the contrary. That
fact indicates that racial discrimination has long been deeply
embedded in Arizona’s political institutions and that both
parties have discriminated when it has served their purposes.
Further, the “mixed bag of advancements and discriminatory
actions” in “Arizona’s recent history” does not weigh in
Arizona’s favor. As Chief Judge Thomas wrote: “Rather,
despite some advancements, most of which were mandated
by courts or Congress [through Section 5 preclearance],
Arizona’s history is marred by discrimination.” DNC,
904 F.3d at 738 (Thomas, C.J., dissenting). The “history of
official discrimination” in Arizona and its political
subdivisions “touch[ing] the right of the members of the
minority group to register, to vote, or otherwise to participate
in the democratic process” is long, substantial, and
unambiguous. Gingles, 478 U.S. at 36–37 (quoting S. Rep.
at 28–29).
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that appear on both the OOP ballot and the ballot for the
correct precinct are copied. The duplicated ballot then is
scanned through the optical scan voting machine and
electronically tallied.” Id.
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not.” Id. at 878. Based on this assessment, the court held that
Plaintiffs had not carried their burden at step two. The
district court clearly erred in so holding. The district court
clearly erred in minimizing the strength in favor of Plaintiffs
of Senate factors one (official history of discrimination) and
seven (number of minorities in public office). Further, the
district court clearly erred in finding that Senate factors eight
(officials’ responsiveness to the needs of minority groups)
and nine (tenuousness of the justification of the policy
underlying the challenged provision) do not favor Plaintiffs.
Plaintiffs have successfully shown that all of the considered
Senate factors weigh in their favor. Most important, plaintiffs
have shown that the most pertinent factors, five and nine,
weigh very strongly in their favor.
c. Summary
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Id. at 871.
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viii. Assessment
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c. Summary
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i. Historical Background
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Id. at 1281; see also Poland v. Chertoff , 494 F.3d 1174, 1182
(9th Cir. 2007) (“[I]f a subordinate . . . sets in motion a
proceeding by an independent decisionmaker that leads to an
adverse employment action, the subordinate’s bias is imputed
to the employer if the plaintiff can prove that the allegedly
independent adverse employment decision was not actually
independent because the biased subordinate influenced or was
involved in the decision or decisionmaking process.”).
v. Assessment
c. Summary
Id. at 155.
Arizona’s OOP policy and H.B. 2023 both fail the results
test. The result of Arizona’s OOP policy is that twice as
many minority ballots as white ballots are thrown away.
Prior to the enactment of H.B. 2023, third-party ballot
collectors, acting in good faith, collected many thousands of
valid ballots cast by minority voters. White voters rarely
relied on third-party ballot collection. The result of H.B.
2023 is that many thousands of minority ballots will now not
be collected and counted, while white ballots will be largely
unaffected.
IV. Conclusion
1
Section 2 of the Voting Rights Act prohibits a State from adopting
an election practice that “results in a denial or abridgement of the right of
any citizen of the United States to vote on account of race or color.”
52 U.S.C. § 10301(a).
The Fifteenth Amendment ensures that the right “to vote shall not be
denied or abridged by the United States or by any State on account of race,
color, or previous condition of servitude.” U.S. Const. amend. XV.
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I respectfully dissent.
2
The majority’s effort to deny history can easily be dismissed. Maj.
Op. 104–105. As Judge Bybee’s dissent ably recounts, not only Arizona
but 21 other states have restricted early balloting for years. Bybee, J. Diss.
Op. 157–158.
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3
While the majority refers to the legislation as “H.B. 2023,” I prefer
to call it the ballot-collection policy by which it is commonly known and
will do so throughout the dissent.
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II
4
As the majority admits, we review the district court’s “overall
finding of vote dilution” under § 2 of the Voting Rights Act only for clear
error. Thornburg v. Gingles, 478 U.S. 30, 79 (1986) (emphasis added);
Maj. Op. 8–9. The majority quotes an elaboration of this standard by the
Supreme Court in Gingles. Maj. Op. 8–9. But the Court in Gingles
actually held that the district court’s ultimate finding was not clearly
erroneous. Gingles, 478 U.S. at 80.
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III
Voters of N.C. v. North Carolina, 769 F.3d 224, 240 (4th Cir.
2014).
they were cast out of the voter’s assigned precinct. Id. at 872.
In 2016, this fell to 0.15 percent (3,970 out of 2,661,497). Id.
And of those casting ballots in-person on Election Day,
approximately 99 percent of minority voters and 99.5 percent
of non-minority voters cast their ballots in their assigned
precincts. Id. Given that the overwhelming majority of all
voters complied with the precinct-based voting system during
the 2016 election, it is difficult to see how the district court’s
finding could be considered clearly erroneous. See also
Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 198
(2008) (plurality opinion) (discussing “the usual burdens of
voting”). And it further ruled that DNC “offered no evidence
of a systemic or pervasive history of minority voters being
given misinformation regarding the locations of their
assigned precincts, while non-minority voters were given
correct information” to suggest that the burden of voting in
one’s assigned precinct is more significant for minority voters
than for non-minority voters. DNC, 329 F. Supp. 3d at 873.
5
The majority correctly asserts that Gingles was a vote dilution not
vote denial case. However, it incorrectly claims the standard in a vote
denial case is different and, without stating such standard, it simply
concludes that the 3,709 ballots cast out of precinct in the 2016 general
election in Arizona is more than any “de minimis number” below which
there is no Section 2 violation, without ever revealing what such minimum
threshold might be. Maj. Op. 107. The majority cites League of Women
Voters, a vote denial case, to reach this conclusion. See 769 F.3d at
248–49. Yet, in that case, the Fourth Circuit relies on Gingles throughout
to determine that the same analysis applies to vote denial and vote dilution
cases. Id. at 238–40. Earlier in its opinion, the majority itself uses
Gingles as the standard for analyzing a § 2 violation in a vote denial case.
Maj. Op. 37. The distinction the majority attempts to draw fails because,
contrary to what the majority implies, “a § 2 challenge based purely on a
showing of some relevant statistical disparity between minorities and
whites, without any evidence that the challenged voting qualification
causes that disparity, will be rejected,” Gonzalez v. Arizona, 677 F.3d 383,
495 (9th Cir. 2012) (internal quotation marks omitted), and “[t]his
approach applies both to claims of vote denial and vote dilution.” Id. at
495 n. 32.
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6
As Judge Ikuta explained, “an election rule requiring voters to
identify their correct precinct in order to have their ballots counted does
not constitute a ‘disenfranchisement’ of voters.” DNC, 904 F.3d at 730
n.33; see also id. at 724 n.27.
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7
The majority suggests that DNC challenges only “Arizona’s policy,
within that system, of entirely discarding OOP ballots” as opposed to
counting or partially counting them. Maj. Op. 78. But this is not a
compromise position: there is no difference between counting and
partially counting a ballot cast out-of-precinct. Counting an OOP ballot
would entail evaluating the ballot to determine on which issues the person
would have been qualified to vote in his or her assigned precinct and
discarding the person’s votes as to issues on which he or she would not
have been qualified to vote. Certainly, the majority isn’t suggesting that
a person would ever be allowed to vote on issues which he or she would
not have been eligible to vote even in the assigned precinct. It is difficult
to discern any other possible meaning for what the majority refers to as
entirely “counting” out-of-precinct ballots.
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Because DNC has failed to meet its burden under step one
of the Voting Rights Act § 2 inquiry—that the district court’s
findings were clearly erroneous—our analysis of its OOP
claim should end here.
IV
8
The Fifteenth Amendment authorizes Congress to enforce its
guarantee that the right “to vote shall not be denied or abridged . . . by
appropriate legislation.” U.S. Const. amend. XV. Section 2 of the Voting
Rights Act is such legislation. Shelby Cty. v. Holder, 570 U.S. 529, 536
(2013).
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9
Because the majority concludes that the OOP policy and the ballot-
collection policy violate § 2 of the Voting Rights Act and the Fifteenth
Amendment to the United States Constitution, it does not reach DNC’s
claim that such policies also violate the First and Fourteenth Amendments
to the United States Constitution. I will not belabor such claims here; for
these purposes, it is sufficient to say that—for many of the reasons and
based on much of the evidence cited above—I would also conclude that
neither practice violates the First and Fourteenth Amendments.
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1
I join in full Judge O’Scannlain’s dissent. I write separately to place
the majority’s decision today in context of the American democratic
tradition.
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Two such rules are challenged here: the rule about how
Arizona will count out-of-precinct votes (OOP) and the rule
about who may file another person’s absentee ballot (H.B.
2023). As rules of general applicability, they apply to all
voters, without “account of race or color.” 52 U.S.C.
§ 10301(a).2 Rather than simply recognizing that Arizona has
enacted neutral, color-blind rules, the majority has embraced
the premise that § 2 of the VRA is violated when any
minority voter appears to be adversely affected by Arizona’s
election laws. Although the majority abjures this premise for
now, claiming that it does “not need to go so far” as equating
“the case of an individually targeted single minority voter
who is denied the right to vote and the case where a facially
neutral policy affects a single voter,” Maj. Op. at 45, its
analysis necessarily rests on that premise. The majority has
2
In relevant part, § 2 of the Voting Rights Act provides that “[n]o
voting qualification or prerequisite to voting or standard, practice, or
procedure shall be imposed or applied by any State . . . in a manner which
results in a denial or abridgement of the right of any citizen of the United
States to vote on account of race or color.” 52 U.S.C. § 10301(a). A
violation of § 2(a) may be shown “based on the totality of the
circumstances . . . [if] the political processes leading to nomination or
election in the State . . . are not equally open to participation by members
of a class of citizens [on account of race or color].” Id. § 10301(b).
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3
“One of the major voting innovations in certain states was the
increase in the number of polling places.” Robert J. Dinkin, Voting in
Revolutionary America: A Study of Elections in the Original Thirteen
States, 1776–1789, at 96 (1982). Among the states, New York led the
way, “enacting a law in 1778 which stated that all future elections should
be held ‘not by counties but by boroughs, towns, manors, districts, and
precincts.’” Id. at 97 (quoting Laws of New York, sess. 1, chap. 16
(1778)). In early America, polling places were located where the people
were:
4
For many years, a voter was not even permitted to cast a provisional
ballot in a precinct other than her own. See Harris, Election
Administration in the United States, at 287–88. The Help America Vote
Act (HAVA) now requires states to permit voters to cast a provisional
ballot. 52 U.S.C. § 21082(a). HAVA, however, does not affect a state’s
rules about how to process a provisional ballot. It does provide that states
must create a toll-free number that “any individual who casts a provisional
ballot may access to discover whether the vote of that individual was
counted, and, if the vote was not counted, the reasons that the vote was not
counted.” 52 U.S.C. § 21082(a)(5)(B); see Blackwell, 387 F.3d at 576
(“HAVA is quintessentially about being able to cast a provisional
ballot. . . . [B]ut the ultimate legality of the vote cast provisionally is
generally a matter of state law.”).
5
I have listed all fifty states, the District of Columbia, and U.S.
territories, with relevant citations to their treatment of out of precinct
votes, in Appendix A. In Appendix B, I have categorized the jurisdictions
by rule.
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6
For example, five states will count an out-of-precinct vote, but only
if the ballot is filed in the voter’s county (Kansas, New Mexico,
Pennsylvania, Utah) or town (Massachusetts). Louisiana and Rhode
Island will only count votes for federal office. Puerto Rico will count only
votes for Governor and Resident Commissioner.
7
Four states (Idaho, Minnesota, New Hampshire, North Dakota) are
not accounted for in either list because they allow same-day registration
and do not use provisional ballots.
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voter from Tucson who votes in any precinct other than his
assigned precinct. Under the majority’s new rule, a voter
from Tucson may cross precinct lines and vote in any precinct
in Arizona—for instance, in Phoenix. His cross-precinct
ballot will be counted for those offices which are common to
ballots in his precinct-in-law in Tucson and his new precinct-
in-fact in Phoenix—such offices would include the
presidency, the U.S. Senate, and any statewide offices. His
ballot will be disqualified, however, for all state and local
offices defined by geographic boundaries that are not
common to the two precincts—for example, the U.S. House
of Representatives, the state legislature, and municipal offices
such as mayor, city council, and school board.
The net result is that the majority has lowered the cost to
voters of determining where they are supposed to vote, but
only as to presidential, U.S. Senate, and statewide races. As
the majority no doubt intends, persons who didn’t know or
were confused about their polling place will have their vote
counted, but only in select races. But as the majority may not
have thought through, anyone in Arizona, including people
who know where they are supposed to vote in an election (but
for one reason or another would not have otherwise voted
because it was inconvenient or impossible to vote at their
home precinct), will also be able to vote—but again, only in
select races. Arizona can thus expect more votes in the
presidential, senatorial, and state races than would be cast
under its traditional rules. I suppose that in theory that’s a
good thing. What the majority has not counted on is the
effect its order will have on the races that depend on
geographic boundaries within Arizona: congressional, state-
legislative, and local offices. When voters do not go to their
local precincts to vote, they cannot vote in those races.
Voters who do not take the time to determine their
appropriate precinct—for whatever reason—and vote out of
precinct have disenfranchised themselves with respect to the
local races. That’s a bad thing.
8
The Majority dismisses this point by highlighting how Arizona has
frequently changed polling places in some localities. Maj. Op. at 111
(referring to Arizona’s high rate of OOP voting). But there is no evidence
in the record that the same voters’s ballots are excluded as OOP year after
year. My point is that a voter who has had her ballot excluded as OOP is
more likely to exercise greater care in finding the right polling location
next time.
9
The Majority worries that OOP voters may never come to know that
their votes were in fact rejected and, hence, will never learn from the
situation. Maj. Op. at 110. Whatever the cause for the Majority’s
concern, Arizona’s statutory law is not to blame. Arizona law specifically
requires county recorders to establish “a method of notifying the
provisional ballot voter at no cost to the voter whether the voter’s ballot
was verified and counted and, if not counted, the reason for not counting
the ballot.” Ariz. Rev. Stat. Ann. § 16-584(F) (2019). Thus, voters should
have the opportunity to find out whether their vote was counted.
II
10
“The exercise of a public franchise by proxy was illegal at common
law.” Cortlandt F. Bishop, History of Elections in the American Colonies
129 (1893). The Colonies experimented with proxy votes, with varying
degrees of success. Proxy voting was not a success in at least one colony.
A 1683 letter to the Governor of South Carolina warned:
11
Until recently, two other states had similar provisions on the books.
California formerly limited who could return mail ballots to the voter’s
family or those living in the same household. Compare Cal. Elec. Code
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§ 3017(a)(2) (West 2019), with Cal. Elec. Code § 3017(a) (West 2015).
It only amended its law in 2016. 2016 Cal. Legis. Serv. ch. 820 (West).
Illinois also used to make it a felony for anyone but the voter, his or her
family, or certain licensed delivery companies to mail or deliver an
absentee ballot. 10 Ill. Comp. Stat. Ann. 5/19-6 (1996); 10 Ill. Comp.
Stat. 5/29-20(4). Illinois amended that provision in 2015 to let voters
authorize others to mail or deliver their ballots. 10 Ill. Comp. Stat. Ann.
5/19-6 (2015).
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12
For context, Appendix C provides the relevant provisions of the
laws from all fifty states, the District of Columbia, and the U.S. territories
regarding the collection and mailing of absentee ballots.
13
The Commission on Federal Election Reform was organized by
American University’s Center for Democracy and Election Management
and supported by the Carnegie Corporation of New York, The Ford
Foundation, the John S. and James L. Knight Foundation, and the
Omidyar Network. It was co-chaired by former President Jimmy Carter
and former Secretary of State James Baker.
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14
Pressure on absentee voters has long been noted. See Harris,
Election Administration in the United States, at 302 (“The amount of
intimidation now exercised by the precinct captain in many sections of
large cities is very great; with mail voting it would be enormously
increased. The overbearing and dominant precinct captain would insist
upon seeing how each voter under obligation to him had marked his ballot,
and the voter would have no protection against such tactics.”).
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III
Appendix A
Jurisdiction Citation
Alabama Ala. Code § 17-9-10 (2019) (providing
that voters must vote in their “county
and voting place” of domicile); see also
Davis v. Bennett, 154 So. 3d 114, 131
(Ala. 2014) (affirming that Alabama
law requires voters to cast ballots at the
correct voting place).
Alaska Alaska Stat. Ann. § 15.20.207(b) (West
2019) (failing to list out-of-precinct
voting as grounds for rejecting a
ballot); Alaska Stat. Ann.
§ 15.20.211(a) (West 2019) (providing
that a voter may cast a vote in another
house district for statewide and federal
offices); see also Hammond v. Hickel,
588 P.2d 256, 264 (Alaska 1978)
(“There is no constitutional requirement
of precinct residency, and there is clear
statutory authorization for persons
claiming to be registered voters to vote
a questioned ballot if there is no
evidence of registration in the precinct
in which the voter seeks to vote.”).
American Am. Samoa Code Ann. § 6.0223(b)–(c)
Samoa (providing that a voter’s right to vote
may be challenged if the voter “is not
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Appendix B
15
Idaho, Minnesota, New Hampshire, and North Dakota are not
included because they do not use provisional ballots. See supra
Appendix A.
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Appendix C
Jurisdiction Citation
Alabama Ala. Code § 17-11-4 (2019):
State of Arizona
Senate
Fiftieth Legislature
First Regular Session
2011
SB 1412
Introduced by
Senator Shooter
AN ACT
AMENDING SECTIONS 16-542, 16-545, 16-547 AND 16-1005, ARIZONA REVISED STATUTES; RELATING TO EARLY VOTING.
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(TEXT OF BILL BEGINS ON NEXT PAGE)
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Be it enacted by the Legislature of the State of Arizona: , No. 18
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Section 1. Section 16-542, Arizona Revised HStatutes, is amended to read:
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16-542. Request for ballot d in DN
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A. Within ninety-three days before any election called pursuant to the laws of this state, an elector may make a verbal or signed
request to the county recorder, or other officer in charge of elections for the applicable political subdivision of this state in whose
jurisdiction the elector is registered to vote, for an official early ballot. In addition to name and address, the requesting elector shall provide
the date of birth and state or country of birth or other information that if compared to the voter registration information on file would
confirm the identity of the elector. If the request indicates that the elector needs a primary election ballot and a general election ballot, the
county recorder or other officer in charge of elections shall honor the request. For any partisan primary election, if the elector is not
registered as a member of a political party that is entitled to continued representation on the ballot pursuant to section 16-804, the elector
shall designate the ballot of only one of the political parties that is entitled to continued representation on the ballot and the elector may
receive and vote the ballot of only that one political party. The county recorder may establish on-site early voting locations at the
recorder's office, which shall be open and available for use beginning the same day that a county begins to send out the early ballots. The
county recorder may also establish any other early voting locations in the county the recorder deems necessary.
B. Notwithstanding subsection A of this section, a request for an official early ballot from an absent uniformed services voter or
overseas voter as defined in the uniformed and overseas citizens absentee voting act of 1986 (P.L. 99-410; 42 United States Code section
1973ff-6) or a voter whose information is protected pursuant to section 16-153 that is received by the county recorder or other officer in
charge of elections more than ninety-three days before the election is valid. If requested by the absent uniformed services or overseas
voter, or a voter whose information is protected pursuant to section 16-153, the county recorder or other officer in charge of elections shall
provide to the requesting voter early ballot materials through the next two regularly scheduled general elections for federal office
immediately following receipt of the request.
C. The county recorder or other officer in charge of elections shall mail the early ballot and the envelope for its return postage
prepaid to the address provided by the requesting elector within five days after receipt of the official early ballots from the officer charged
by law with the duty of preparing ballots pursuant to section 16-545, except that early ballot distribution shall not begin more than twenty-
six days before the election. If an early ballot request is received on or before the thirtieth day before the election, the early ballot shall be
distributed on the twenty-sixth day before the election.
D. EXCEPT FOR THE SPOUSE, PARENT OR CHILD OF THE ELECTOR, only the elector may be in possession of that
elector's VOTED OR unvoted early ballot. If a complete and correct request is made by the elector within twenty-six days before the
election, the mailing must be made within forty-eight hours after receipt of the request. Saturdays, Sundays and other legal holidays are
County of _________
I, _________________, do solemnly swear that I am the identical person whose name is signed to this affidavit and that
this name and signature are my true name and signature, or if I did not personally sign, it was because of physical
disability and that I requested __________________ (name of person signing affidavit) to sign for me, that I have not
voted and will not vote in this election in any other state during the calendar year of this affidavit and that I personally
voted the enclosed ballot or that it was marked according to my instructions because I was unable to do so. I understand
that knowingly voting more than once in any election is a class 5 felony. I declare that I am more than eighteen years of
age, that I am a qualified elector of the state of Arizona and the county of ____________ and that I reside at
_____________. If a challenge is filed against my early ballot, I understand that a copy of the challenge will be sent to me
by first class mail and that I may have as little as forty-eight hours' notice of an opportunity to appear. For purposes of
notifying me of a ballot challenge between the time I return my ballot and seven days after election day, please use the
following address: ________________. (If no address is provided, notice will be mailed to the mailing address listed on the
registration rolls.)
________________________
Elector
B. The face of each envelope in which a ballot is sent to a federal postcard applicant or in which a ballot is returned by such
applicant to the recorder or other officer in charge of elections shall be in the form prescribed in accordance with the uniformed and
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Background
The Voting Rights Act of 1965 (“VRA”) and its subsequent reauthorizations
created a system by which certain jurisdictions were required to submit any
statutory or procedural change that affected voting for preclearance prior to
implementing it. The preclearance obligation, set forth in Section 5 of the VRA,
shifted the burden of proof to the covered jurisdictions to demonstrate before
implementing any statutory or procedural change that affected voting that such
change would not have a discriminatory effect. 42 U.S.C. § 1973c. The covered
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jurisdictions could seek preclearance by either submitting a letter containing thery 22, 20
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requisite information to the Department of Justice (“DOJ”) or by filing
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declaratory judgment action in the District Court for the 8District
Columbia. See 42 U.S.C. § 1973b; 28 C.F.R. . 18- Arizona and its sub-
§o51.10.
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jurisdictions(1) were covered jurisdictions
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citeVRA.
within section 4(b) of the
The procedure for seeking preclearance from the DOJ is set forth in 28 C.F.R.
§ 51.20, et seq. For each voting change affecting a statewide election policy,
procedure or statute, the State submitted a letter with the following information:
28 C.F.R. § 51.27. The DOJ then had sixty calendar days from the date it
received the submission to interpose an objection. 28 C.F.R. § 51.9. The DOJ
was also authorized to ask for additional information within that sixty-day
period. 28 C.F.R. § 51.37. When the DOJ asked for additional information, a
new sixty-day period would begin from the DOJ’s receipt of that additional
information. Id. A jurisdiction could withdraw a submission at any time prior to a
final decision by the DOJ. 28 C.F.R. § 51.25.
Since 1967, the State has submitted approximately 773 statutes, policies,
forms, and procedures affecting voting to the DOJ for preclearance. According
to the Attorney General’s records, the State did not seek preclearance through
court action in the D.C. district court for any proposed changes. Of those 773
submissions, only six were partially or fully withdrawn:
1.
2002 Citizens Clean Election Substantive Policy Statement
2.
Laws 2009 Ch. 134 (H.B. 2101)
3.
Laws 2010 Ch. 48 (H.B. 2261)
4.
Laws 2010 Ch. 314 (H.B. 2113) 20
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5.
Laws 2011 Ch. 105 (S.B. 1412) anua
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6.
Laws 2011 Ch. 166 (S.B. 1471) rchiv
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Those withdrawals, and the current status of
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In Shelby County, Alabama v. Holder, the United States Supreme Court held
that Section 4(b)’s coverage formula was unconstitutional. 133 S. Ct. 2612,
2631 (2013). The Court stated that the formula “can no longer be used as a
basis for subjecting jurisdictions to preclearance.” Id.
Analysis
1. Because Shelby County Eliminated the Coverage Formula and
Therefore Arizona’s Preclearance Obligation, Duly Enacted Statutes that
Were Submitted for Preclearance but Later Withdrawn Are Enforceable.
Section 5 of the Voting Rights Act prohibits the enforcement in any covered
jurisdiction of any “change affecting voting” absent preclearance by a
declaratory judgment or from the DOJ. 28 C.F.R. §§ 51.1, 51.10, 51.12. As set
forth above, this requirement shifted the burden of proof to the State to
demonstrate as a prerequisite for implementing a new statute, procedure, rule,
or form, that the change did not have the purpose or effect of denying or
abridging the right to vote on account of race, color, or membership in a
language minority group. 28 C.F.R. §§ 51.1; 51.10.
Until the Shelby County decision, Arizona statutes that had not been
precleared were unenforceable. Other than preclearance, there was no barrier
to implementing those few duly enacted statutes that had been withdrawn from
preclearance consideration. Now, under Shelby County, the preclearance
barrier is removed and such statutes are enforceable.
The general effective date for new statutes is the ninety-first day after the
Legislature adjourns sine die. Bland v. Jordan, 79 Ariz. 384, 386, 291 P.2d
205, 206 (1955). Generally, the effective date for Arizona statutes subject to
preclearance has been the date of preclearance or the general effective date,
whichever comes later. 20
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a
Under federal jurisprudence, when a court announces a rule of federal Janubut
on law
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does not expressly state whether the decision applies prospectively only, the
opinion “is properly understood to have followed o. 18-normal rule of retroactive
the
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application.” Harper v. Virginia Dept.
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Retroactivity means thatcit when a court decides a case and applies a new legal
rule to the parties before it, then the new rule must be applied “to all pending
cases.” Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 752 (1995).
In Shelby County, the Court announced a new rule of law that Section 4(b)’s
coverage formula is unconstitutional, but did not expressly limit that ruling to
apply prospectively. 133 S.Ct. at 2631. Therefore, under Harper, Shelby
County must have retroactive application.
This interpretation draws additional support from the DOJ’s own statement that
it would not make preclearance determinations on any matters awaiting ruling
at the time the Shelby County decision was issued:
On June 25, 2013, the United States Supreme Court held that the
coverage formula in Section 4(b) of the Voting Rights Act, 42 U.S.C.
1973b(b), as reauthorized by the Voting Rights Act Reauthorization
and Amendments Act of 2006, is unconstitutional and can no longer
But the Reynoldsville Casket case instructs that the retroactivity only applies to
pending cases. None of the withdrawn submissions were under review at the
time Shelby County was issued, and therefore cannot be considered to have
been pending. As such, their effective date cannot be earlier than June 25,
2013.
H.B. 2101 made several amendments to the laws governing county supervisor
board members. Section 1 of the bill lowered the population threshold (from
200,000 to 175,000) at which counties must have five board members and
clarified the number of signatures needed for calling a special election. Section
2 provided that a county with a population exceeding 175,000 based on 2000
census data must begin the process of electing two additional supervisors at
On September 24, 2009, a group of registered voters in Pinal County sued the
Pinal County Board of Supervisors, the Pinal County Recorder, the Pinal
County Election Director, and Pinal County itself in a special action seeking to
declare Section 2 of H.B. 2101 unconstitutional. Robison v. Pinal County Bd. of
Supervisors, Pinal County Superior Court Cause No. S-1100-CV-200903971.
On October 13, 2009, the Attorney General received a request for more
information from the DOJ with respect to Section 2 of the bill, but the DOJ
precleared Section 1. On October 29, 2009, the Pinal County Superior Court
indicated by minute entry that it would enter the form of judgment lodged by
Plaintiffs, which stated that Section 2 of H.B. 2101 was unconstitutional and
may not be implemented. Specifically, the court held the following:
In light of the disposition of that litigation, the Attorney General withdrew the
submission for preclearance with regard to Section 2 of H.B. 2101. Under the
superior court’s decision, Section 2 of H.B. 2101 is void and Shelby County
does not revive it.
c) Laws 2010 Ch. 48 (H.B. 2261) 2010 Ch. 314 (H.B. 2113)
Both Laws 2010 Ch. 48 (H.B. 2261) and Laws 2010 Ch. 314 (H.B. 2113)
amended statutes related to governance of community college districts. The
Attorney General submitted the two laws separately, but simultaneously, to the
DOJ for preclearance, but the subsequent letter from DOJ requesting additional
information and the partial withdrawal letter addressed the two bills together.
H.B. 2261 amended A.R.S. § 15-1441 regarding the term of office for board
members for community college districts. Preexisting law provided for a
staggering of board members from the first general election for board members
The Attorney General submitted Sections 1 and 4 of H.B. 2261 to the DOJ for
preclearance on May 28, 2010.
As noted, the DOJ responded with a request for more information that was
intertwined with a request for more information on H.B. 2113, and parts of H.B.
2113 superseded parts of H.B. 2261. H.B. 2113 also made changes to the
terms of office and number of members for community college district boards.
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Sections 1 and 6 of H.B. 2113 did not include changes affecting voting and ry 22, 20
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were not submitted for preclearance. Section 2 amended A.R.S. § d15-1441(C)
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to provide that the change from six year terms to four-year arch would not
45 terms
158
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become effective until June 30, 2012. Section
bbs, N2oalso provided that the addition
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of two at-large board members would not be effective until July 1, 2012.
in DNC
citedA.R.S. § 16-322, which provided for the number of
Sections 3 and 4 repealed
signatures needed for nomination petitions and replaced that statute with
identical language except for A.R.S. § 16-322(a)(5), which changed the number
of signatures a candidate for community college district must gather. Section 5
amended Section 4 of H.B. 2261 to clarify the effective date.
The Attorney General submitted Sections 2 through 5 of H.B. 2113 to the DOJ
on May 28, 2010 for preclearance. On July 27, 2010, the DOJ responded. The
DOJ did not make a determination as to H.B. 2261, Sections 1 and 4, because
they were superseded by H.B. 2113, Sections 2 and 5. The DOJ also did not
make a determination as to the implementation schedule set forth in H.B. 2261,
Section 1 and H.B. 2113, Section 2, because they were directly related to the
adoption of the two additional proposed at-large board members for which they
sought additional information. The information sought included a detailed
explanation of the governmental interest to be served by the addition of two
members to the college district board and the basis for the state’s decision that
this interest is better served by electing them on an at-large basis, as opposed
to from single-member districts; a description of alternative proposals; and
election returns by voting precinct within Maricopa County for each federal,
state, county, and county school board election since 1999 in which minorities
have participated as candidates.
H.B. 2261, § 1, to the extent that section changed the terms of office for
community college district board members from six years to four years, in a
county with a population of at least three million persons;
H.B. 2113, § 2, to the extent that section amends A.R.S. § 15-1441(C) to
provide that the change in the terms of office provided for in H.B. 2261 will
become effective on June 30, 2012; and
H.B. 2113, §§ 3-5.
Because Shelby County removed the preclearance obligation and this law has
not been changed since its original passage, the effective date must be June
25, 2013 at the earliest. Therefore, the next applicable election at which time
two at-large board members shall be elected is 2014. Candidates seeking to
run for that office must therefore comply with A.R.S. § 16-322(A)(5)(b) and all
other applicable election statutes. The current members of the applicable
community college district boards will continue to serve the remainders of their
respective terms.
Senate Bill 1412 created new security requirements for early ballots and
The Attorney General submitted the bill for preclearance on May 18, 2011. On
June 27, 2011, the DOJ precleared all of the sections except Subsection D,
which created A.R.S. § 16-1005(D) regarding the requirement to provide a
photo identification when delivering more than ten early ballots. As to that
section, the DOJ asked for more information, including how that proposed
provision was expected to serve the state interest and whether any alternative
measures had been considered; a list of the acceptable photographic
identification; and a detailed description of the statewide report that would be 20
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posted on the secretary of state’s website regarding such individuals who ua
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deliver more than ten early ballots. The Attorney General withdrew v
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submission regarding Subsection D on August 4, 12011. - In 2012, the
s, No. 8
bb
Legislature amended A.R.S. § 1005 byHorepealing that subsection. 2012 Ariz.
NC v.
Session Laws Ch. 361, § 22. D
inTherefore, Shelby County has no effect on the
cited
validity of this provision.
The Attorney General submitted the bill to the DOJ for preclearance on June
15, 2011. The DOJ sent a letter on August 15, 2011 that precleared all but
Section 4 (A.R.S. § 16-580(G)) of the bill. As to that section, the DOJ requested
additional information, including the following:
d. any guidance that the state has issued concerning the manner
20
in which it will implement this prohibition, including enforcement at
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the polling places or in county offices.
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On October 4, 2011, the Attorney General withdrew 1 5
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preclearance
18-
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, regarding
submission regarding Section 4 of S.B. 1471
b amendments to A.R.S.
NC v. Ho
§ 16-580(G). The Legislature D
in amended A.R.S. § 16-580 in 2012 to remove the
cited
language at issue. 2012 Ariz. Session Laws Ch. 361, § 13. That version was
precleared on July 19, 2012.
Conclusion
The Shelby County decision removed the preclearance obligation by holding
the coverage formula unconstitutional. Therefore, any duly enacted state
statutes that had not been precleared or repealed are deemed valid and
enforceable. The effective date of such statutes is the date of the Shelby
County decision, June 25, 2013. This Opinion does not address the effect of
Shelby County on the enforceability of any laws, policies, or procedures
enacted by the counties, cities, towns, or other jurisdictions subject to the
preclearance obligation.
Thomas C. Horne
2005 N Central Avenue, Phoenix, AZ 85004 | Email: Contact Us | Phone: (602) 542-5025
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CHART 1 OF 3
NOTES
* Write-in Votes.
** 138,216 Miscellaneous write-in, blank and void votes were compiled as one total. This figure is not included in Total Votes
Cast.
# Write-in votes for Presidential candidates not permitted.
## The District of Columbia has 3 electoral votes. There was 1 abstention.
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ADDRESSES AND PARTY DESIGNATIONS OF 2000 PRESIDENTIAL CANDIDATES anua ON THE GENERAL ELECTION
BALLOTS e d on J
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s o. 18 reports filed by a candidate's principal campaign committee. The
(Note: Links are provided to an index of campaign finance
, Nwhose
bb
candidate may have additional authorized committees, reports can be found by searching the Commission's Imaging system.)
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Cathy Gordon Brown (I)
2206 Dabbs Avenue
Old Hickory, TN 37138
Patrick J. Buchanan (REF, RFM, FRE, BP, BR, CF, IDP, RTL, I)
Committee to Elect Patrick J. Buchanan
8233 Old Courthouse Road, Suite 200
Vienna, VA 22182
http://www.buchananreform.com
703/734-2700
Howard Phillips (CON, CST, AIP, AMC, BP, CNC, CPF, IAP, UST, I)
Phillips 2000, Inc.
450 Maple Avenue East
Vienna, VA 22180
http://www.phillips2000.com/
703/242-0613
Compiled by:
Public Disclosure Division
Federal Election Commission
800/424-9530 (press 3) or 202/694-1120
Back to:
You requested that we review activities at DOJ to help ensure voter access to the
polls and actions to address allegations of voting irregularities. This report
(1) identifies and describes changes DOJ has made since November 2000 to help
ensure voter access to the polls; (2) identifies and describes actions that the Voting
Section in DOJ’s Civil Rights Division has taken to track, address, and assess
allegations of election-related1 voting irregularities received between November 2000
2
and December 2003; and (3) assesses the Voting Section’s internal control activities
1
Election-related refers to a preliminary investigation, matter, or case that the Voting Section initiated based on allegations about
a specific election. A matter is an activity that has been assigned an identification number but has not resulted in a court filing of
a complaint, indictment, or information. A case is an activity that has been assigned the same identification number that it had as
a matter and has resulted in the court filing of a complaint, indictment, or information.
2
Internal controls are integral components of an organization’s management that provide reasonable assurances of objectives
that include, among other things, efficient operations. They comprise the plans, methods, and procedures used to meet missions,
goals, and objectives and, in doing so, support performance-based management. For additional information on internal controls,
see GAO Internal Control: Standards for Internal Control in the Federal Government, AIMD-00-21.3.1 (Washington,
D.C.:November 1, 1999).
We primarily performed our work at DOJ’s Civil Rights Division, Voting Section. We
obtained relevant documentation and interviewed responsible officials regarding
DOJ’s activities to help ensure voter access to the polls. To identify and describe
changes made since November 2000, we reviewed documentation on DOJ’s efforts to
monitor and observe elections, increase emphasis on enforcement of minority
language and overseas voters’ rights, disseminate election-related guidance, and
increase its resources to address voting issues. To identify and describe actions that
the Voting Section took to track, address, and assess allegations of voting
irregularities, we reviewed telephone logs and 34 files with information on a
preliminary investigation, matters, and cases that the Voting Section considered to be
election-related voting irregularities initiated from November 2000 to December 2003.
To assess the Voting Section’s internal controls, we obtained available documentation
of policies, procedures, and techniques the Voting Section has to manage allegations
of voting irregularities and considered them in relation to GAO’s internal control
standards. We also interviewed officials and obtained documentation from DOJ’s
Criminal Division, Public Integrity Section (PIN), in relation to the0coordination
22, 202
between the Voting Section and PIN to address voter access
nuar
y to the polls.
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On August 31, 2004, we provided your 5 ar a briefing document on the results of our
staffs
18-1584
work. Enclosure I contains sthe .
omaterials we presented at that time. Our audit work
obb ,N
H
was performed in Washington, D.C., from May 2003 through August 2004 in
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accordance ed in DN
with generally accepted government auditing standards.
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Background
The Voting Section in the Civil Rights Division is charged with the responsibility of
enforcing federal voting rights statutes that are designed to safeguard the right to
vote of racial and language minorities; disabled, elderly, and illiterate persons; and
military and overseas voters, among others. The Voting Section is also charged with
the responsibility of enforcing federal statutes that, among other things, address
issues such as voter registration, provisional voting, and voter information.
Provisional voting permits eligible persons to vote on election day if their names are
not on voter registration lists, with the understanding that each person’s eligibility
will be verified after the election and their votes counted, if eligible. (See enc. I, and
attach. I, for more information on statutes that the Voting Section enforces.)
The Voting Section, among other things, monitors election-day activities to ensure
voting rights are protected and initiates investigations and opens matters—an activity
that has not resulted in a court filing of a complaint, indictment, or information—to
examine allegations of voting irregularities that fall within the jurisdiction of the Civil
Rights Division. If warranted, a matter may culminate in a case—an activity that has
resulted in the filing of a complaint, indictment, or information with a federal court.
The Voting Section also may initiate matters to monitor private lawsuits. Voting
Section attorneys are generally responsible for conducting investigations and
prosecuting cases.
The Voting Section also coordinates with PIN to refer allegations the Voting Section
receives that involve violations of criminal statutes related to voting fraud. For
example, in relation to the 2002 federal election, the Voting Section referred three
matters deemed to be potential violations of criminal laws to PIN, which assumed
responsibility for the investigations. In addition, the Voting Section and PIN have
provided joint training to Assistant U.S. Attorneys, with the Voting Section presenting
information about civil rights statutes that are to protect the right to vote and PIN
presenting information about criminal statutes that are to prevent election fraud.
Results
Since November 2000, DOJ has implemented changes to help ensure voter access to
the polls. The Voting Section emphasized the importance of its monitoring of
election-day activities and increased its monitoring of these activities. In 2000, DOJ
attorneys and professional staff monitored elections in 5 counties in 5 states. By 2002,
the number of election jurisdictions monitored by DOJ attorneys and professional
staff increased to 19 counties in 10 states, with monitoring of elections20 in counties in
Florida accounting for the bulk of the increase. The Voting ry 22, 20 also (1) placed a
Section
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greater priority on protecting the voting rightsiveofd olanguage minority voters by helping
arch
to ensure that certain covered jurisdictions45 provided bilingual voting materials for
. 18-158
elections; (2) placed a priority Noon enforcing and preparing for compliance with the
Hobbs,
federal statute to help
C v. ensure voting rights of overseas voters; (3) provided additional
training to in DN U.S. Attorneys on civil rights statutes to educate them about
Assistant
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cit
voters’ rights; and (4) provided guidance to states regarding the implementation of
sections of the Help America Vote Act of 2002 (HAVA) that DOJ enforces.3 For
example, the Voting Section provided guidance to states by issuing a press release
that outlined provisions of HAVA that took effect on January 1, 2004, such as
provisional voting and identification requirements for new voters who register by
mail.
The Attorney General directed the Civil Rights Division to work with civil rights
leaders, state and local election officials, and U.S. Attorney Offices prior to election
day in an effort to help ensure that citizens’ voting rights are protected. The Attorney
General also directed the Criminal Division to work with these same groups in
helping to preserve ballot integrity and prevent election offenses. Almost all of the
U.S. Attorney Offices reported that they had contacted various state or local officials
prior to the November 2002 election. Voting Section officials reported that the
Assistant Attorney General for the Civil Rights Division and staff from that division
met with various civil rights organizations.
3
42 U.S.C. §§ 15301 to 15545.
According to Voting Section officials, DOJ plans to help ensure voter access for the
upcoming November 2004 election include increasing its monitoring of elections,
coordinating with civil rights organizations, and establishing procedures for bringing
the concerns of civil rights organizations about specific issues or jurisdictions to DOJ
on or before election day in November 2004. Voting Section officials also said that
final decisions as to where monitoring will be conducted are not made public until
shortly before an election. (See enc. I for more information.)
The Voting Section has used several means of tracking allegations of voting
irregularities and the Section’s actions with regard to those allegations. First, the
Voting Section used telephone logs to track telephone calls regarding allegations of
voting irregularities it received related to the November 2000 and 2002 elections.
According to the Voting Section, contractors were hired to help handle the
unprecedented number of calls that were received concerning the November 2000
election situation to help ensure that the public would be able to voice opinions and
concerns. Second, DOJ tracks matters and cases through its Interactive Case
Management (ICM) system—its formal process for tracking and managing work
activities. Prior to opening a matter, the Voting Section may make a determination
that an allegation does not fall within DOJ’s jurisdiction or may initiate a preliminary
investigation about an allegation. Third, the Voting Section tracked monitoring of
elections using logs and for some election-monitoring activities 0they
0 opened matters;
22,2 2
thus, it has not routinely tracked election-monitoring activities
ry through the ICM
anua
system. (See enc. I for more information.) ived on J
rch
15845 a
. 18- took to address allegations of voting
Actions that Voting Sectionsattorneys
bb , No
irregularities initiated Ho November 2000 to December 2003 included contacting
. from
in DNC v
cognizantcielection
ted officials at the state and local levels; obtaining data as appropriate;
interviewing voters affected by alleged voting irregularities; meeting with minority
groups; and assessing the merits of the allegations to determine what, if any, further
action was needed. Attorneys in the Voting Section addressed allegations of voting
irregularities by first determining whether the allegations were related to violations of
federal civil rights statutes and then, if warranted, initiating a preliminary
investigation or matter to determine whether an allegation had merit. If warranted, a
matter may culminate in a case that is filed with a federal court. We reviewed files for
1 closed preliminary investigation, 25 closed matters, and 8 open and closed cases
that the Voting Section considered election-related. The preliminary investigation and
13 matters were closed because they lacked merit. The remaining 12 matters were
closed because the state or voting jurisdiction took action to remedy an issue, a state
court issued an order addressing the issue, the voting jurisdiction implemented
changes for future elections, or Voting Section attorneys provided election officials
feedback following the on-site monitoring of elections. Six cases remain open
pending fulfillment of consent decrees entered into on behalf of DOJ and the
jurisdiction in alleged violation of federal statute, and two cases were closed because
states had taken action in response to consent decrees. Enclosure I and
attachment IV provide detailed information on actions taken regarding selected
matters and cases that the Voting Section considered as involving election-related
voting irregularities initiated from November 2000 to December 2003.
Regarding internal controls, we found that the Voting Section did not have a reliable
method to consistently record and document telephone calls received alleging voting
irregularities. According to Voting Section officials, the number of calls received
following the November 2000 election far exceeded the number received in past
elections. As a result, the Voting Section used a contractor to assist in handling the
telephone calls. To track some of the telephone calls related to the November 2000
election, Voting Section and contractor staff used telephone logs that had several
broad categories to capture the subject of the allegation, rows for states from which
the calls originated and, for the most part, tabulated the numbers of calls using tick
marks. Voting Section staff also kept two other types of logs to record some
telephone calls, which included columns to record a caller’s name, state, telephone
number, and description of the call. Our analysis of the contractor telephone logs
found, among other things, that these logs did not include a way to record calls from
4 states—Arkansas, Kansas, Montana, and North Dakota. According to Voting Section
officials, these 4 states were left off the contractor logs inadvertently, although these
officials noted that they were unaware of any calls received from these states. Our
analysis of logs that Voting Section staff completed found that Voting Section staff
recorded having received calls from some of these states. The Voting Section
improved upon the telephone log for the November 2002 election by having one log
that consistently provided for documenting the caller’s name, telephone number, and
action taken. Compared with the telephone log that contractor staff 0 maintained and
22, 202
one of the three types of logs that Voting Section staff nmaintained
ry after the November
n a ua
Jcategorize
2000 election, which had several columns to broadly d o the subject of the
archive
telephone calls, the November 2002 log 584included
5 one column to capture the subject of
the telephone calls. The Voting o. 18-1 plans to take several actions to address voting
Section
bs, N
irregularities for the v . Hob
November 2004 election, including, among other things, using a
C
telephonecitlog n DN
ed isimilar to the one used for the November 2002 election. The Voting
Section did not provide written instructions to contractors for completing the
telephone logs related to the 2000 election. However, for the November 2002 federal
election, the Voting Section provided instructions to DOJ staff for how to handle calls
from citizens, the press, members of Congress, and others. In addition to its method
for recording and documenting telephone calls received regarding voting
irregularities, we found that the Voting Section did not routinely track its election-
monitoring activities through its ICM system. The Voting Section said that it has plans
to assign one identification number to track these activities in the future. (See enc. I
for more information.)
In conclusion, lack of specifics about allegations and actions limits DOJ’s ability to
have accurate and clear information to share with the public or Congress about the
types of allegations received and actions taken. Predictions of another close
presidential election in November 2004 combined with possible voter confusion over
new requirements in the Help America Vote Act—such as the implementation of
provisional voting in states that had not previously used provisional voting—and
possible questions regarding voting equipment could result in the Voting Section
again receiving a very large number of telephone calls. This could result in the need
to use contractors to record voter allegations because much of the Voting Section
staff will be monitoring election sites on election day. It is important that the
x develop and implement procedures for the November 2004 election to help
ensure that the Voting Section has a reliable method of tracking and
documenting allegations of voting irregularities and actions taken to address
them. Procedures could include more precise categories to record types of
allegations and actions taken; development of instructions on completing the
telephone logs; and development and implementation of training for
contractors, should they be needed; and
Agency Comments
We provided a draft of this report to DOJ for review and comment. The draft report
sent to DOJ for comment reflected changes made as a result of DOJ’s prior detailed
review of attachment IV in enclosure I and changes DOJ requested in writing
following our exit conference with them. In commenting on the draft, DOJ generally
agreed with the report and recommendations. The Deputy Assistant Attorney General
for the Civil Rights Division accepted both recommendations and said that the
Assistant Attorney General for the Civil Rights Division has directed their
implementation.
In commenting on our recommendation for the Civil Rights Division to track and
report on election-monitoring activities in the ICM system, DOJ noted that it currently
has procedures that effectively track election-monitoring activities. Our report
acknowledges that the Division had information on election monitoring. However,
the Voting Section told us that they did not routinely track election-monitoring
activities in the ICM system—its formal process for tracking and managing work
activities. Because we had asked for clarification of the confusing and unclear
information previously provided on election monitoring and tracking, the Civil Rights
Division, in a May 25, 2004, written response provided clarifying information that
explained the different databases and data from logs that were used to capture
information on election monitoring. In this written response, the Civil Rights Division
included four charts on election monitoring that had been recently created, one for
each calendar year from 2000 through 2003 (but not for 2004, as the Division states it
did). In addition, the Civil Rights Division said that it had asked for a program that
would provide the types of reports and data that the Division is routinely asked to
provide regarding the election-monitoring program. Our recommendation is directed
toward improving the Voting Section’s tracking of election-monitoring activities,
which the Voting Section has emphasized as being a very important 0 part of its efforts
22, 202
to help ensure voter access to the polls. Tracking election-monitoring
ary activities in the
ICM system would ensure that this importantivcomponenton Janu of the Voting Section’s
ed
work is incorporated into the Division’s 45 arch process for tracking and managing
formal
158
work activities. . 18-
bbs, No
NC v. Ho
in D DOJ with a copy of the draft report that included this
After we cprovided
ited
correspondence and its enclosure for review and comment, Civil Rights Division
officials realized they had not provided us with information on all of the telephone
logs used following the November 2000 election. The Civil Rights Division
subsequently provided that additional information, which showed that Voting Section
staff used two additional types of logs for the November 2000 election. These logs
included columns to record callers’ names, telephone numbers, states, and
descriptions of the calls. This new information was incorporated into our report to
accurately reflect the Voting Section’s activities to track telephone calls following the
November 2000 election. (See p. 5 in this letter and p. 42 in enc. I.) According to the
Civil Rights Division, the November 2002 log, which it proposes as the basis for
documenting telephone calls related to the upcoming November 2004 elections, was
the only one used by Voting Section staff for the November 2002 election.
DOJ noted that the draft report discussion of the Civil Rights Division’s use of
telephone logs focused almost exclusively on the logs maintained by contractors, that
the draft report failed to note that these logs were only a small portion of all the
records of telephone calls received by the Division, and that any shortcomings in
these logs were extremely unlikely to have changed the course of subsequent
investigations. As we note in our report, it was difficult to obtain precise information
on the number of calls or the specific nature of alleged irregularities from the
telephone logs on the November 2000 election. The information that the Voting
Section collected on its telephone logs was not precise enough to support the
Division’s statements that upwards of 95 percent of the calls received regarding the
November 2000 election reflected citizen frustration or anger over the election, that
the vast majority of the calls that contractors received came from New York and
California, or that the vast majority of the calls from those two states expressed
frustration over the situation in Florida. Moreover, it is important to note that our
recommendation with regard to recording complaints about voting irregularities for
the November 2004 election is based on the limitations of the log used in
November 2002 and the lack of a clear plan for accurately recording a potentially
large volume of complaints that may arise from the November 2004 election. For
example, November 2004 will be the first national election in which all states will be
implementing HAVA’s new voter identification and provisional voting requirements
with which many voters may be unfamiliar.
In its comments, DOJ said that the Civil Rights Division invited us to meet with
Voting Section staff who worked during the time of the November 2000 election and
that we declined this invitation. We did not receive an invitation from officials in the
Civil Rights Division, who arranged our meetings with Voting Section staff, to meet to
discuss the November 2000 election logs. Throughout this review, we requested
meetings with Voting Section and Civil Rights Division officials. 0It20is always our
,2
preference, as part of our work, to meet with agency officialsnuary 22 to discuss issues and
a
questions we may have about agency processes, on J
edprocedures, and documentation.
rchiv
However, Civil Rights Division officials a
4preferred
5 that we provide questions in writing
. -158
18in
and to respond to those questions o writing. The Civil Rights Division sometimes
obbs, N
took weeks to respond H
C v. in writing, which contributed significantly to the length of
DNcomplete
time it took ed i
usnto our review. Had Civil Rights Division officials been more
cit
willing to meet with us to explain the Voting Section’s processes and discuss the
documentation provided to us, rather than rely on written questions and responses,
the time required for this review could have been significantly reduced.
DOJ’s written comments are in attachment V. DOJ also provided technical comments
from the Criminal Division’s Public Integrity Section and from the Civil Rights
Division, which we incorporated as appropriate. The Civil Rights Division provided
additional information on cases initiated for calendar years 2002, 2003, and 2004. The
2002 and 2003 cases involved enforcement under Sections 2 and 208 of the Voting
Rights Act and were not clearly identifiable in the ICM system as also involving
language minority issues under Section 203 of the Voting Rights Act. The Civil Rights
Division subsequently identified these cases as including enforcement of language
minority violations, and we have included them in our report. Information on cases
initiated in calendar year 2004 had not been included because our review covered
complete calendar years, but we have added information on cases initiated in 2004 as
of August 2004 as a courtesy to the Division.
___ ___ ___ ___ ____
As agreed with your offices, unless you publicly release its contents earlier, we plan
no further distribution of this report until 30 days from its issue date. At that time, we
will send copies of this report to the Attorney General, Department of Justice;
Chairman, Senate Committee on Governmental Affairs; Chairman, House Committee
on Government Reform; Chairman, House Committee on the Judiciary; Chairman and
Ranking Minority Member, House Committee on House Administration; and
Chairman and Ranking Minority Member, Senate Committee on Rules and
Administration. Copies of this report will be made available to other interested
parties upon request. This report will also be available on GAO’s Web site at
http://www.gao.gov. If you have any questions, please contact me at (202) 512-8777 or
by e-mail at jenkinswo@gao.gov or Linda Watson, Assistant Director, at (202)
512-8685 or by e-mail at watsonl@gao.gov. Key contributors to this report were
Katherine Davis, Gina Flacco, Evan Gilman, Geoffrey Hamilton, Mary Martin,
Maria Santos, and Daniele Schiffman.
Enclosure I
Enclosure I
Enclosure I
Contents
• Objectives
• Results in Brief
• Scope and Methodology
• Background
• Changes to Ensure Voter Access
• Actions to Track, Address, and Assess Allegations
• Assessment of Internal Controls
• Conclusions
• Recommendations
• Attachment I—Federal Voting Rights Statutes
020
2, 2Integrity
• Attachment II—Role of the Criminal Division’sanPublic ary 2 Section
on J u
• Attachment III—Election Jurisdictions d
45 arcMonitored
hive during 2000-2003
158
• Attachment IV—Election-Related . 18- Preliminary Investigation, Matters,
bbs, No
and Cases Initiated vfrom
. Ho November 2000 to December 2003
in DNC
• ted
AttachmentciV—Agency Comments
Enclosure I
Objectives
2. Identify and describe any actions that the Voting Section in DOJ’s
Civil Rights Division has taken to track (monitoring work initiated
and actions taken), address, and assess allegations of election-
related voting irregularities received between November 2000 and
December 2003. 020 ,2
nuary 22
n Ja
hived o
• Election-related refers to a58preliminary
5 arc investigation, matter, or
8-1 4
case that the Voting NSection
o. 1 initiated pursuant to an allegation
obbs,
about a specific
C v. election.
H
ed in DN
cit
Enclosure I
Objectives
3. Assess the Voting Section’s internal control activities to help ensure relevant,
accurate, and reliable recording and documentation of allegations of voting
irregularities for management decision-making and external reporting
0 purposes.
2
ry 22, 20
nua
• Internal controls are integral components of
d n Jaorganization’s management
oan
hive
that provide reasonable assurance arcobjectives
45 of that include, among other
-158
things, efficient operations.o. 18They comprise the plans, methods, and
procedures used to
o bs, N missions, goals, and objectives and, in doing so,
bmeet
H
C v.
e in DN
supportd performance-based management.
cit
Enclosure I
Results in Brief
1. Since November 2000, DOJ has increased its monitoring of election activities
on election day, provided additional training to Assistant U.S. Attorneys on civil
rights laws, placed a greater priority on protecting the voting rights of language
minorities and overseas voters, and provided guidance to states regarding
implementation of the Help America Vote Act (HAVA).
2. The Civil Rights Division tracks matters and cases through a case
management system. Telephone calls related to the 2000 and 2002 federal
elections were tracked using telephone logs. The Voting Section addressed
allegations of voting irregularities by contacting cognizant officials, obtaining
data if deemed appropriate, and assessing the merits of the allegation to
determine what, if any, further action was needed.
3. The Voting Section tracked the unprecedented volume of telephone calls
related to the November 2000 election by using logs. Some logs had several
broad categories to capture the subject of the calls and rows for0 states from
2
which the calls originated, while other logs contained callers’ ry 22, 20names, contact
information, and description of the calls. The Voting anua
ed on J Section improved upon the
telephone log for the November 2002 election v
rchi by including categories to
5845 a
capture the action taken on each. 1call -1 and to record the caller’s name,
, No 8
telephone number, and subject bbs of the call. The Voting Section tracked some
monitoring of elections
C . Hoassigning matter identification numbers.
vby
in DN
cited
Enclosure I
20
ry 22, 20
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bbs, No
v. Ho
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cited
Enclosure I
Scope
Enclosure I
Methodology
Objective 1
Enclosure I
Methodology
Objective 2
• reviewed all files that the Voting Section identified as those it considered to
be election-related voting irregularities that were initiated from November
2000 to December 2003. This included 1 closed preliminary investigation,
25 closed matters, and 8 closed and open cases. The 2Voting , 202 Section tracks
0
ry 2
its matters and cases based on statutes it enforces anuaand not on whether an
d on J
allegation relates to a specific election. rcConsequently,
e the Voting Section
iv
45 a h
had to identify for us the preliminary
-15 investigation, matters, and cases that it
8
No. 18 voting irregularities.
considered to be election-related
s,
obb H
C v.
ed in DN
cit
Enclosure I
Background
Voting Section
20
ry 22, 20
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bbs, No
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cited
10
Enclosure I
Background
Voting Section
• enforcing the Voting Rights Act, which is designed to safeguard the right
to vote of racial and language minorities and illiterate persons, among
other provisions;
• enforcing provisions of the National Voter Registration Act,0 and the Help
America Vote Act (HAVA) which address issues such 2 , 202
2as voter
ry
Janua
registration, provisional voting, and voterhinformation.
ived
on
rc
15845 a
. 18-
b bs, No
Attachment I providesNmore v. Ho information on statutes that the Voting Section
in D C
enforces. cited
11
Enclosure I
Background
Voting Section
2 0
The Voting Section coordinates with the Criminal Division’s ry 22, 20 Public Integrity
a
Section (PIN) to help ensure voters’ rightsivare Janu
ed onprotected, such as
rch
referring three allegations to PIN about 15 845 a possible election crimes related
. 18-
to the 2002 election. (See bbs, No
attach. II for more information about PIN’s
v. Ho
election-related responsibilities.)
in DN
C
cited
12
Enclosure I
Background
Voting Section
The following table provides information on all matters and cases initiated by the Voting
Section in calendar years 2000 through 2003.
Enclosure I
Background
Voting Section
As shown in the following table, the Voting Section’s positions for attorneys (authorized and
on-board) increased since the beginning of fiscal year 2000.
14
Enclosure I
20
ry 22, 20
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bbs, No
v. Ho
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cited
15
Enclosure I
Since November 2000, DOJ focused on ensuring voter access to the polls
by
16
Enclosure I
In March 2001, the Attorney General announced that DOJ was placing more
emphasis on its election-monitoring program. The Attorney General is
authorized by law to notify the Office of Personnel Management (OPM) of the
need to assign federal observers to monitor polling place activities on election
day in counties that the Attorney General has certified under the Voting Rights
Act and in counties authorized by federal court orders. The Attorney General
delegates the authority with respect to federal observers to the Voting Section.
The Voting Section’s decision to request federal observers is based on past
experience or investigations that indicated observers may be needed to protect
voting rights. (See attach. I for information on the law authorizing federal
observers.)
In addition to OPM federal observers, the Voting Section assigns DOJ attorneys
and professional staff to monitor election day activities in local jurisdictions
throughout the United States, whether or not the locations have been certified
2020
2,
under the Voting Rights Act. This additional monitoringnuisarypart of the Voting
2
Ja
Section’s investigations of possible voting rightsveviolations. Unlike OPM
i d on
observers, DOJ attorneys and professional arch
staff do not have specific statutory
5
right of access to polling places ,and 1 -1584get authority from the appropriate
must
8
o.
state and/or local officialsv.for bs N
Hobthem to enter polling places.
in DNC
cited
17
Enclosure I
18
Enclosure I
20
ry 22, 20
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. 18-
bbs, No
v. Ho
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cited
Note: DOJ monitors are attorneys and professional staff.
19
Enclosure I
Enclosure I
Officials in the Voting Section and PIN said that Assistant U.S. Attorneys can attend
annual public corruption conferences, where they receive (1) training on handling
election crime investigations and prosecutions and (2) periodic updates to DOJ’s
manual on prosecuting election crimes. Starting in October 2002, additional
annual training, referred to as the Ballot Access and Voting Integrity Conference,
was provided to Assistant U.S. Attorneys who, in coordination with DOJ
headquarters, handle election-related matters for the 93 U.S. Attorneys.
The Ballot Access and Voting Integrity Conference training, according to Civil Rights
Division officials, included civil rights issues that had not been covered in the
training offered to Assistant U.S. Attorneys prior to October 2002 and was
designed to provide them a better understanding of what the Voting Section does
to enforce federal voting rights statutes. Also, according to the Civil Rights
Division, the presentations that the Voting Section made at this annual training
conference placed special emphasis on the election-monitoring program and
2020
solicited the Assistant U.S. Attorneys’ involvement in helping 22, to enforce federal
ary
voting rights laws, ballot access, and the election-monitoring
on Janu program. According
c ved
hithe
to PIN, this training, which was mandatory for
ar Assistant U.S. Attorneys
5845
designated as district election officers,
o. 18-1 also covers voting integrity issues
,N
important to election crime obbs
v. Hmatters.
in DNC
cited
21
Enclosure I
The Ballot Access and Voting Integrity Conference training was provided to
Assistant U.S. Attorneys in October 2002, September 2003, and July
2004.
The training materials for 2002 included topics related to federal voter
registration and election-day statutes that the Voting Section enforces,
which include the Voting Rights Act, National Voter Registration Act, and
the Uniformed and Overseas Citizens Absentee Voting Act, and topics
related to handling election crime investigations, trials, and the statutes
and theories used to address election crimes.
20
ry 22, 20
The 2003 training materials included, in additionnto anthe
ua same topics
ed o J
covered in 2002, information on HAVA 45 a
and
rchi election monitoring by
v
158
federal observers. According, Nto o. 1PIN
8- and the Voting Section, the content
bbs
of the 2004 trainingNwas v. Hosimilar to that provided in previous years.
in D C
cited
22
Enclosure I
23
Enclosure I
Prior to the November 2002 federal elections, almost all of the U.S.
Attorney Offices reported to PIN that they had contacted various state or
local officials either by telephone, in writing, or in person.
The state and local officials contacted varied by each U.S. Attorney Office.
For example, according to PIN,
24
Enclosure I
According to the Voting Section, the Assistant Attorney General for the Civil Rights
Division has met with representatives of civil rights organizations to discuss the
Voting Section’s election-monitoring program and its plans for monitoring the
November 2004 election and has made other presentations concerning voting
rights issues at many of these organizations’ meetings and conferences. The
Voting Section also said that as this election approaches, it plans to ask civil
rights organizations what election jurisdictions they believe the Voting Section
should consider monitoring.
20
y 22, 20
The Voting Section also said that since October 2002, Jstaff anua from the Civil Rights
r
Division have made presentations to, met with, eor
d onreceived presentations from
rchiv
various civil rights and other organizations, 15845 a such as the NAACP, Lawyers’
Committee for Civil Rights Under . 18-
bbs, No Law, League of United Latin American
Citizens, LeadershipNConference Ho on Civil Rights, AARP, National Association of
D C v.
Secretaries ofciState,
ted in and National Association of State Election Directors.
25
Enclosure I
In 2002, the Civil Rights Division made enforcement of voting rights laws that
address access to voting for language minority groups one of the Voting
Section’s highest priorities. DOJ reported in a civil rights accomplishments fact
sheet that the Civil Rights Division conducted an outreach campaign with state
and local election officials and local language minority groups to help ensure
access to bilingual voting materials for language minority groups. This was
begun in July 2002 following the certification of covered jurisdictions based on
the results of the 2000 census.
• The fact sheet states that the outreach included a July 2002 letter from the
then- Assistant Attorney General for the Civil Rights Division to each of the
296 political jurisdictions covered by Section 203 of the Voting Rights Act
notifying them of their bilingual access obligations in the upcoming and
0
, 202
future elections. According to the Civil Rights Division,22attorneys from the
uary
Division visited many of the 296 counties covered
on J
a by Section 203.
n
ived
45 arch
58
18-1 that Civil Rights Division attorneys
• No.
In addition, the fact sheetbsreported
,
conducted in-person Hob
v. meetings with state and local election officials and
DNC
local language
ed in minority groups in almost all of the more than 80 newly
cit
covered jurisdictions.
26
Enclosure I
We analyzed data as of March 15, 2004, on matters and cases related to Section
203 language minority issues recorded in DOJ’s Interactive Case Management
(ICM) system, which is used to track and manage these data. We found that the
Voting Section initiated 7 matters and no cases in 2000, 13 matters and 2 cases
in 2001, 94 matters and 1 case in 2002, and 28 matters and no cases in 2003.
According to the Civil Rights Division, the Division also initiated the following
cases: (1) two language assistance cases in 2002 under Section 2 and Section
208 of the Voting Rights Act; (2) two cases in 2003 under Section 2, Section
203, and Section 208 of the Voting Rights Act; and (3) five cases in 2004 under
Section 203 of the Voting Rights Act. Sections 2, 203, and 208 of the Voting
Rights Act are described in attachment I.
20
ry 22, 20
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27
Enclosure I
Given the large number of troops deployed overseas and an increase in concerns about late
mailing of absentee ballots, Voting Section officials said that the Voting Section placed
increased priority in 2004 on enforcing and preparing to ensure compliance with the
Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), which only applies to
federal elections. These officials cited the following enforcement and preparation activities
during 2004.
• Obtained a court order in April for emergency relief to remedy an UOCAVA violation
committed during the Pennsylvania primary election.
• Negotiated with the state of Alabama in May to obtain a similar emergency relief
order from a state court for a county’s failure to provide enough time for the mailing to
and return of ballots from overseas voters for its primary election.
• Obtained a court order in an UOCAVA lawsuit in July against the state of Georgia for
similar emergency relief for its primary election.
• Established a working group of Voting Section attorneys to facilitate communications
with the Department of Defense’s Federal Voting Assistance Program, 20 which is
charged with administering UOCAVA, and to plan for the y 22, 20 of more UOCAVA
possibility
r
nua
litigation during 2004. n Ja
ed o
iv
45 arch
58
18-1
Our analysis of matters and cases inbsDOJ’s
, No. ICM system as of March 15, 2004, showed that
the Voting Section initiated v3. Hob
matters and 2 cases during calendar years 2000 through
NC
D of absentee voting by uniformed and overseas citizens. All 5 of
2003 involving theteissue
in
ci d
the matters and cases were initiated in 2002.
28
Enclosure I
In October 2002, HAVA established the Election Assistance Commission to, in part, serve as
a national clearinghouse and resource to compile information and review procedures
related to federal election administration and provide guidance on implementing certain
HAVA requirements. Because the Election Assistance Commission was not established
until December 2003, the Voting Section provided informal, nonbinding guidance to states
on implementing the requirements of HAVA.
29
Enclosure I
According to Voting Section officials, DOJ’s plans for helping to ensure voter
access for the November 2004 election include
30
Enclosure I
20
ry 22, 20
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cited
31
Enclosure I
In our review, we found that the Civil Rights Division had formal procedures to track matters
and cases to address voting irregularities. Specifically, the Voting Section tracks
investigative matters and cases through the Division’s ICM system using unique
identification numbers. In addition, the Voting Section tracked telephone calls alleging
voting irregularities for the November 2000 and November 2002 elections using telephone
logs.
In our review of files, we found that Voting Section attorneys generally addressed allegations
of voting irregularities initiated from November 2000 to December 2003 through a
preliminary investigation or investigative matters and took actions such as interviewing
20
, 20by
election officials at state and local levels, interviewing voters affected
y 22 alleged voting
irregularities, and meeting with civil rights groups. Januar
do n
archive
5845
Our review of Voting Section files also found
o. 18-1that Voting Section attorneys, in conjunction with
supervisory attorneys, assessed bs, N
v. Hob information collected and determined whether (1) federal
voting rights laws were violated;
C (2) an investigation should be closed; or (3) further action
in DN
was needed byctheited Voting Section, such as filing a complaint with a federal court or
continued monitoring.
32
Enclosure I
The ICM is a database system that the Voting Section uses to track and
manage matter and case data for the Section and can be used to
generate reports.
33
Enclosure I
34
Enclosure I
35
Enclosure I
• If the Voting Section deems that a voting allegation falls within its
jurisdiction and appears to have merit, an attorney is assigned to
make inquiries about the allegation. The attorney performs some
investigative work to determine whether the allegation should be
pursued.
• If an attorney believes a matter should be investigated, the attorney
discusses this with the Deputy Chief responsible for the state in
which the matter rises. The Section Chief and Deputies decide
whether or not to formally open a matter. The Voting Section
assigns a number to the matter for tracking purposes. 20
22, 20
• When Voting Section staff monitor electionsJanand ua receive allegations
ry
of or information about voting irregularities ed on while on site, they make
rchiv
efforts to resolve allegations 8by 1 5845 a
contacting local election officials
. 1 -
immediately. Further binvestigation
bs, N
o of such irregularities is
conducted after anv . Ho
election if the allegation was not resolved on
C
election day ed in DN
or if it is deemed otherwise necessary to prevent such
cit
problems from arising in the future.
36
Enclosure I
Our file review found that the Voting Section generally took the following
actions during its investigations initiated from November 2000 to
December 2003:
37
Enclosure I
38
Enclosure I
39
Enclosure I
20
ry 22, 20
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bbs, No
v. Ho
in DNC
cited
40
Enclosure I
• the Voting Section tracked telephone calls related to the November 2000
election by using telephone logs. Some logs had several broad
categories to capture the subject of the calls, rows for states from which
the calls originated and, for the most part, tabulated the numbers of calls
using tick marks. Other logs that the Voting Section used contained
information such as callers’ names, telephone numbers, and
descriptions of the calls. The Voting Section improved upon the
telephone log for the November 2002 election by including columns to
record the action taken on each call in addition to recording the caller’s
name and telephone number, but has one column to capture the subject
of the call, and
20
• as mentioned previously, the Voting Section tracked ry 22, 20 monitoring of
some
anua
elections by opening matters and assigning ed on J matter an identification
each
iv
number. According to Voting Section arch
45officials, it has not routinely
158
. 18-
tracked election-monitoring bsactivities
,No through the case management
system but is considering v. Hobassigning one identification number to track
C
in DN
cited
election-monitoring activities.
41
Enclosure I
• The Voting Section reported to the Senate Committee on the Judiciary that
it received approximately 11,000 calls related to the November 2000
election. In comparison, the Voting Section told us it received several
hundred calls related to the November 2002 election. The Voting Section
told us it does not have records of telephone calls related to other elections
except to the extent that such telephone calls generated investigations that
became matters or cases.
• According to the Voting Section, contractors were hired in November 2000
to help handle the unprecedented number of incoming telephone calls
received concerning the November 2000 election to help ensure that the
public would be able to voice opinions and concerns. Hiring 0contractors
2
was not intended as a mechanism to gather specific allegations. ry 22, 20
a
anulogs
• Voting Section staff and contractors kept telephone ed on J that consisted of
iv
tables with columns identifying broad45categories arch of allegations or comments
and rows with the state from which 58
o. 18-1 a call originated. Voting Section staff
also kept two other types s, N
bof logs, which included the caller’s name, state,
v. Hob
telephone number, DNCand description of the call. Calls were recorded on most
ed in
logs as tickcitmarks, while some logs included limited narrative on the nature
of the call.
42
Enclosure I
Our analysis of the telephone call logs completed by contractors found the
following:
• It was difficult to count how many calls were received because, for example,
one caller could have made multiple complaints and some logs appeared to
be duplicates.
• The call logs did not include a way to record calls from 4 states—Arkansas,
Kansas, Montana, and North Dakota. According to Voting Section officials,
these 4 states were left off the contractor logs inadvertently, although these
officials noted that they were unaware of any calls received from these
states. Our analysis found that Voting Section staff recorded having
received calls from some of these states.
• Columns that were used to record callers were labeled voter fraud,
irregularities, request investigation, re-vote, and general comments. 0
In
some of the logs, the columns were re-labeled manually 02
, to tally additional
2
y 22
types of comments. The broad nature of these Ja nuar
column labels to record
on
ed the
information about the nature of the calls rcand
hiv limited narrative sometimes
included on logs did not always 8provide158 45 a sufficient information to determine
-
whether the Voting Section s,No. 1
should initiate an investigation.
bb
v . Ho
• The telephonenlogs DNC did not include information on callers’ contact
information di
citesuch as telephone numbers.
43
Enclosure I
Some of the telephone logs that Voting Section and contractor staff completed
included comments indicating allegations that people may have been prevented
from voting. According to the Voting Section, Voting Section personnel reviewed
logs on an ongoing basis and efforts were made to contact callers who provided
telephone numbers and whose messages indicated possible violations of federal
civil rights statutes. The Voting Section does not have records indicating how
many such return calls were made and noted that return telephone contact
information was not always provided or asked for.
44
Enclosure I
For the November 2002 federal election, the Voting Section assigned staff
to receive calls; provided instructions for how to handle calls from
citizens, the press, members of Congress, and others; and provided
state contact information to refer callers to state officials, when
appropriate.
45
Enclosure I
According to the Civil Rights Division, the Voting Section plans to ensure
that it has full capability to receive and respond, as appropriate, to all
calls related to the November 2004 general election in the most
expeditious way possible. Division officials further stated that the Voting
Section has procedures in place to track and respond to telephone calls
that it might receive in relation to the November 2004 general election.
• Specifically, the Civil Rights Division told us that the Voting Section
plans to use a telephone log such as the one used for the November
2002 election to record information on the caller’s name, time of call,
city and state, telephone number, subject of the call, and action
taken on the call. The Division noted that the November 20 2002 log or
ry 22, 20
any log that the Voting Section might useonfor ua November 2004
Janthe
ved
election is a tool to ensure that the 45 a
Voting
rchi Section does not miss
158
calls raising important concerns
, No
. 18- over which it has jurisdiction and is
bbs
not intended to definitively
. Ho track all election-related allegations
DNC v
received.cited in
46
Enclosure I
The Civil Rights Division also cited other procedures that the Voting
Section plans to use to track and respond to possible telephone calls
related to the November 2004 general election. These procedures will
include the Voting Section
• continuing its practice of assigning its staff to specific states for the
purpose of reviewing citizen calls and letters;
47
Enclosure I
20
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cited
48
Enclosure I
Internal Controls
Conclusions
49
Enclosure I
Internal Controls
Conclusions
• The Voting Section has emphasized the importance of2, its 2020monitoring of
y 2
election day activities, yet the monitoring program anuahas not been routinely
r
on J
tracked in the ICM system, its formal process rchived for tracking and managing
work activities. Voting Section . officials158 45 a told us they were considering
18-
tracking this program inHthe bs No
,future, and we believe the significance of
b
v. o
this program warrants DNC a more formal tracking of monitoring efforts and
ited in
resources dedicated to the program.
c
50
Enclosure I
Recommendations
To reassure citizens of the integrity of our election processes and to reassure the public and
Congress of DOJ’s commitment to its responsibility to enforce federal voting rights
statutes, we recommend that the Assistant Attorney General for the Civil Rights Division
direct the Chief of the Voting Section to
• develop and implement procedures for the November 2004 election to ensure that
the Voting Section has a reliable method of tracking and documenting allegations of
voting irregularities and actions taken to address them. Procedures could include
more precise categories for recording types of allegations, more precise categories to
020 telephone logs,
record actions taken, development of instructions on completing, 2the
2 should
and development and implementation of training for contractors,
ary 2 they be
needed, and on Janu
d
ive
45 arch
58
• implement a method to track sand 18-1 on election monitoring program activities in
o.report
, N
bb
the Interactive Case Management system.
NC v. Ho
in D
cited
51
Attachment I
According to the Voting Section, to carry out its mission, the Voting Section brings
lawsuits against states, counties, cities, and other jurisdictions to remedy denials and
abridgements of the right to vote; defends lawsuits that the Voting Rights Act
authorizes to be brought against the Attorney General; reviews changes in voting laws
and procedures administratively under Section 5 of the Voting Rights Act; and
monitors election day activities through the assignment of federal observers under
Section 8 of the Voting Rights Act. Provided below are short descriptions of some of
the primary voting laws enforced by the Voting Section.
Section 2 of the Voting Rights Act establishes a nationwide ban against any
state or local election practices or procedures that deny or abridge a citizen’s
right to vote on account of race, color, or membership in20a2language
0 minority
22,
group.4 The Voting Rights Act provides that plaintiffs ary may establish a violation
on Janu
of Section 2 by demonstrating that “the ivpolitical
ed processes leading to
nomination or election” deny-1members 45 arch of the protected classes an equal
8
8 5
o. 1in
opportunity to participate
s, N the political process and to elect representatives
. Hobb
of their choice.
NC v A court, under the Voting Rights Act, may also consider the
extented in Dwhich
to members of the protected class have been elected to office in
cit
the jurisdiction, though Congress made clear that Section 2 does not confer
upon protected classes a right to proportional representation.
x Sections 203 and 4(f)(4) of the Voting Rights Act (42 U.S.C. §§ 1973aa-1a,
1973b(f)(4))
Sections 203 and 4(f)(4) are the language minority provisions of the Voting
Rights Act and require certain covered jurisdictions to provide bilingual
election materials and assistance based on census data pertaining to the
population of citizens of voting age with limited English proficiency and their
rate of illiteracy. With respect to Section 203, the Voting Rights Act requires
jurisdictions to provide language minority assistance when certain criteria are
met, such as when more than 5 percent of the citizens of voting age or more
than 10,000 of the citizens of voting age are members of a single language
minority group, and are unable to speak or understand English adequately
enough to participate in the electoral process.
4
42 U.S.C. §§ 1973, 1973b(f)(2).
Attachment I
Section 208 of the Voting Rights Act authorizes voting assistance for blind,
disabled, or illiterate persons. A voter who requires assistance to vote by
reason of blindness, disability, or inability to read or write may be given
assistance by a person of the voter’s choice, other than the voter’s employer or
agent of that employer or officer or agent of the voter’s union.
Under Section 5 of the Act, “covered” 5 jurisdictions may not change their
election practices or procedures until they obtain federal “preclearance” for
the change. The act provides for either judicial or administrative preclearance.
Under the judicial mechanism, covered jurisdictions may seek declaratory
judgment from the United States District Court for the District of Columbia
that the change has neither the purpose nor the effect of discriminating against
protected minorities in exercising their voting rights. Under the administrative
mechanism, covered jurisdictions may seek the same determination from the
Attorney General. The Attorney General may deny preclearance 20 by interposing
ry 22, 20
and objection to the proposed change within 60 days
anua
of its submission.
nJ
chived o
ar
x Section 6 of the Voting Rights8- 845 (42 U.S.C. § 1973d)
15Act
1
No.
Hobbs,
Section 6Dof v. Voting Rights Act provides for the appointment of federal
Cthe
ed in N
examiners
cit by order of a federal court or, with respect to certain covered
jurisdictions, upon certification by the Attorney General. Federal examiners
help to register voters by determining whether a citizen meets state eligibility
requirements and must therefore be included in the registration rolls. A federal
court, under the Voting Rights Act, may order the appointment of federal
examiners to any jurisdiction sued under any statute to enforce certain
constitutional voting guarantees.6 In covered jurisdictions, the Attorney
General may appoint examiners upon certification that the Attorney General
has received at least 20 meritorious written complaints of voting
discrimination or that the Attorney General otherwise believes that the
appointment of examiners is necessary to protect voting rights.
5
The jurisdictions targeted for “coverage” are those evidencing discriminatory voting practices, based
upon a triggering formula, as defined in Section 4 of the Voting Rights Act (42 U.S.C. 1973b). The
Attorney General and the Director of the Census have responsibility for determining which
jurisdictions are covered by the triggering formula, and their determinations are not reviewable in any
court and are effective upon publication in the Federal Register.
6
See also, section 3 of the Voting Rights Act (42 U.S.C. § 1973a).
Attachment I
Under Section 8 of the Voting Rights Act, federal observers may be appointed,
upon request of the Attorney General, in any jurisdiction where an examiner is
serving. Federal observers are to monitor elections and report whether
persons entitled to vote were allowed to vote and whether their votes were
properly counted.
Section 11(b) of the Voting Rights Act prohibits persons, whether acting under
color of law or not, from intimidating, threatening, or coercing, or attempting
to intimidate, threaten or coerce, any person for voting or attempting to vote.
Section 11(b) further prohibits intimidation, threats, or coercion of those
persons aiding other persons in voting or exercising certain powers or duties
under the Act.
Uniformed and Overseas Citizens Absentee Voting Act of 1986 (42 U.S.C. §§
1973ff to 1973ff-6) , 202
0
y 22
Januar
The Uniformed and Overseas Citizens Absentee d on
archive Voting Act of 1986 (UOCAVA), in
general, requires states and territories 45 allow absent uniformed service voters, their
58to
o. 18-1
spouses and dependents, and bs, Ncertain other overseas voters to register and vote
absentee in elections v. Hobfederal office. UOCAVA requires, for example, that a
for
C
in DN
citeddesignee prescribe a federal write-in absentee ballot for all overseas
presidential
voters in federal elections. The ballot is to be used if the overseas voter applies for,
but does not receive, a state absentee ballot.7 While state law, in general, governs the
processing of these federal write-in ballots, UOCAVA requires that states permit their
use in federal elections.8
The National Voter Registration Act of 1993 (NVRA) established procedures designed
to “increase the number of eligible citizens who register to vote in elections Federal
office,” while protecting “the integrity of the electoral process” and ensuring the
maintenance of “accurate and current voter registration rolls.”9 NVRA requires all
states to adopt certain federal voter registration procedures, except for those states
that have no registration requirements or that permit election-day registration with
respect to federal elections.10 NVRA, for example, requires states to allow applicants
for driver’s licenses to register to vote on the same form.11 NVRA also requires states
7
42 U.S.C. § 1973ff-2(a).
8
Id. § 1973ff-1(3).
9
42 U.S.C. § 1973gg.
10
42 U.S.C. § 1973gg-2.
11
Id. § 1973gg-3(a).
Attachment I
to provide voter registration forms and accept completed applications at various state
agencies, including any office in the state providing public assistance, any office in
the state that provides state-funded disability programs, and other agencies chosen
by the state, such as state licensing bureaus, county clerks’ offices, public schools
and public libraries.12 NVRA also contains detailed requirements regarding state
removal of names from federal registration rolls.13
Voting Accessibility for the Elderly and Handicapped Act of 1984 (42 U.S.C. §§
1973ee to 1973ee-6)
Congress has passed legislation intended to improve access for elderly and
handicapped individuals to registration facilities and polling places for federal
elections. The Voting Accessibility for the Elderly and Handicapped Act of 1984
requires, with some exceptions, that political subdivisions within each state that are
responsible for conducting elections assure that polling places and registration sits
are accessible to handicapped and elderly voters.14 If the political subdivision is
unable to provide an accessible polling place, it must provide an alternative means
for casting a ballot on election day upon advance request by the voter.15 The act’s
requirements also include, for example, that each state or political 0subdivision
provide a reasonable number of accessible permanent registration22, 202 facilities, and that
y
nuar
Jaregistration
each state make available certain types of voting d and
on aids such as large-
rchive
type instructions and information by telecommunication
a devices for the deaf.16
845
-15
s, No. 18
bb with Disabilities Act (42 U.S.C. §§ 12131 to 12134)
NC v. Ho
Title II of the Americans
(enforced iby in DDisability Rights Section of the Civil Rights Division)
the
c ted
Title II of the Americans with Disabilities Act prohibits discrimination against
qualified individuals with disabilities in all programs, activities, and services of public
entities. It applies to all state and local governments, their departments and agencies,
and any other instrumentalities or special purpose districts of State and local
governments. According to the Voting Section, as construed by the courts, Title II
requires that polling places be accessible to persons with disabilities with certain
exceptions.
The Help America Vote Act of 2002 (HAVA), among other things, established a
program to provide funds to states to replace punch care voting systems, established
the Election Assistance Commission to assist in the administration of federal
elections and to otherwise provide assistance with the administration of certain
12
Id. §§ 1973gg-5(a)(2), (a)(3), (a)(4), (a)(6)(A)(i).
13
Id. § 1973gg-6(b).
14
42 U.S.C. §§ 1973ee to 1973ee-6.
15
Id. § 1973ee-1(b)(2)(ii).
16
Id. § 1973ee-2, 1973ee-3.
Attachment I
federal election laws and programs, and established minimum election administration
standards for States and units of local government with responsibility for the
administration of federal elections. Certain HAVA provisions including those relating
to voting system standards, provisional voting and voting information requirements,
and computerized statewide voter registration lists are to be enforced by the Attorney
General.17
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17
42 U.S.C. § 15511.
Attachment II
The Public Integrity Section (PIN), in conjunction with the 93 U. S. Attorneys and the
FBI, is responsible for enforcing federal criminal laws applicable to federal election
fraud offenses, among other things. Election fraud is conduct that corrupts the
electoral processes for: (1) obtaining, marking, or tabulating ballots; (2) canvassing
and certifying election results; or (3) registering voters. Election fraud can be
committed with or without the participation of voters. Examples of election fraud
that does not involve voter participation are ballot box stuffing, ghost voting, and
“nursing home” frauds. Examples of election fraud that involves, at least to some
extent, voter participation are vote buying schemes, absentee ballot fraud, voter
intimidation schemes, migratory-voting or floating-voter schemes, and voter
“assistance” fraud in which the voters’ wishes are ignored or not sought. According to
a PIN official, its attorneys spend about 10 percent of their time on election fraud
investigations and trials.
PIN is also responsible for overseeing the U.S. Attorneys’ and the FBI’s investigation
and prosecution of federal election fraud, one of the most common types of alleged
federal election crimes. PIN’s oversight entails (1) advising investigators20 and
prosecutors on the application of federal criminal lawsnuto ry 2 2, 20 crimes, (2)
election
a a
reviewing all major election crime investigations ed on J all proposed election crime
and
rchiv
15845 a DOJ’s District Election Officer (DEO)
charges, and (3) assisting with implementing
program. Under the DEO program, . 18-PIN asks each of the 93 U.S. Attorneys to appoint
bbs, No
v. Ho to serve a 2-year term as a DEO and provides training and
an Assistant U.S. Attorney
in DNC
guidancectoitedDEOs on carrying out their responsibilities. DEOs, whose responsibilities
are performed in conjunction with their other responsibilities, are to
Attachment II
Our analysis of information from PIN on election fraud matters showed that U.S.
Attorneys and PIN attorneys initiated a total of 61 election fraud matters, or
investigations, related to election years 2000 through 2003. Most of the 61 matters
related to elections held in 2002. Matters were initiated in 28 states and 1 U.S.
territory (the U.S. Virgin Islands) and ranged from 1 to 7 matters per state/territory
over the 4-year period. The most frequent allegations of election fraud were for
absentee ballot fraud and vote buying. According to PIN, many of these matters
resulted in indictments and subsequent convictions.
According to the Criminal Division, the information provided by PIN does not include
all election fraud investigations that the U.S. Attorneys have initiated because
(1) U. S. Attorneys are not required to consult with PIN for preliminary investigations
as opposed to grand jury investigations, which require consultation; (2) PIN did not
track election fraud investigations prior to October 2002; and (3) election fraud
investigations are sometimes initiated under non-election statutes.
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Attachment III
Table 1: Attorney General-Certified Election Jurisdictions Monitored during Calendar Years 2000 through 2003
County) anua
Neshoba County Sunflower ed on J Drew (Sunflower Neshoba
iv
arch
45(Sunflower County) County
1 58
o. 18- County)
bs, N
Hob County
Newton Newton County
C v. Kemper County
ed in DN
cit Vicksburg Leake County
(Warren
a
County)
Webb Jones County
(Tallahatchie
County)
Winston County
New York Kings County Kings County Kings County
New York County New York New York County
County
Bronx County
a
South Carolina Marion County Ridgeville Ridgeville (Dorchester
a
(Dorchester County)
County)
Texas Irving (Dallas County) Irving (Dallas Titus County
County)
Total jurisdictions 19 11 13 9
Source: GAO’s analysis of election monitoring data provided by DOJ’s Voting Section.
a
Elections were monitored by DOJ attorneys and professional staff only, not OPM federal observers.
b
Three elections were held in Clarksdale (Coahoma County), Mississippi, in calendar year 2001. Only DOJ
attorneys and professional staff monitored one of the three elections, held on June 5, 2001. For the remaining
two elections held that year, DOJ attorneys and professional staff accompanied OPM observers in monitoring the
elections.
Attachment III
Table 2: Court-Ordered Election Jurisdictions Monitored during Calendar Years 2000 through 2003
Attachment III
Table 3: Other Election Jurisdictions Monitored during Calendar Years 2000 through 2003
Note: DOJ attorneys and professional staff monitored the election jurisdictions shown in this table unless
otherwise noted.
a
OPM federal observers also monitored elections in these counties even though the counties are not under
Attorney General-certification or court order.
Attachment IV
Summary of Election-Related Closed Matters and Open Case Initiated during November 0 or December
2000 22 , 202
ary
Description based on Voting Voting Section’s actions
o n Janu Section’s
Voting Disposition by
Section information taken to address hived assessment of Voting Section
arc
8 -1 5845
allegation allegations
1. The Voting Section Voting o . 1
Section staff Interviews by Voting Florida enacted
bs, N individuals
received a large number of Hobcontacted Section staff with election reform
complaints alleging that NC v. mentioned in complaints individuals mentioned in legislation in 2001
D
Florida voters ed in at the
citarrived that the NAACP had the complaints did not requiring, among
polls expecting to be properly forwarded to determine reveal a distinct pattern of other things, that the
registered to vote, but were the nature of their alleged registration problems in state implement a
told that their names were not registration problems. any one Florida county statewide voter
on the voter rolls. Some Voting Section staff sufficient to warrant registration
people who tried to vote but monitored election-related litigation, but taken as a database, permit
whose names were not on the hearings and lawsuits in whole the registration provisional voting,
voter rolls were often told to Florida to see what steps complaints seemed to and provide funds to
stand in another line so the state was going to indicate general problems counties for voter
election officials could be take. The Voting Section with the state of education and poll
called to verify their reviewed election reform compliance with NVRA worker training. The
registrations, but many voters legislation that Florida provisions for clarity and Voting Section
alleged that office phones enacted in 2001. processing of voter reviewed this law
were busy all day and registration forms, under Section 5 of
registrations could not be transmission of the forms the Voting Rights
verified. Some voters to election officials, Act and precleared it
apparently left and some education of registration on March 28, 2002.
remained at the polls until they personnel, adherence to With respect to this
closed, at which time they NVRA registration investigation, the
were apparently told they deadlines, maintenance Voting Section noted
could not vote because the of registration lists, ability that these reforms
polls were closed. to verify registration at the should help address
polls, and education of the problems alleged
voters, state registration to have occurred in
personnel, election 2000. While the
officials, and poll workers. Voting Section
further noted that the
Attachment IV
Attachment IV
had an intimidating effect on observations. learned two days after the allegations raised.
voters, and (3) that at least on election that the same
one occasion they harassed a man who had approached
voter. An African-American the deputies on Election
man approached sheriff’s Day returned to the
deputies after they left the polling place and
scene of a burglary successfully voted. A poll
complaining that he was not worker observed the
allowed to vote. presence of the sheriff’s
cars around the same
time they were
responding to the
burglary, and observed
that no voter had been
deterred from voting due
to the police activity.
3. It was alleged that the The Voting Section The Voting Section The Voting Section
design of the butterfly ballot in opened a matter related to determined that there was concluded that
Palm Beach County, Florida, this issue and reviewed no basis for asserting because it had no
violated federal voting rights federal law for which the federal jurisdiction. jurisdiction
laws. Section had enforcement concerning this
authority to determine if matter, no further
any action was action was
appropriate. warranted. In
addition, according
to the Voting
20
ry 2 2, 20 Section, the new
anua Florida election
ed on J reform law should
rchiv
158 45 a help to alleviate
. 18- faulty ballot design
bbs, No by providing for
v. Ho greater oversight of
in DNC ballot design.
ited
4. Four statec troopers with the The Voting Section The Voting Section’s The Voting Section
Florida Department of opened a matter to investigation revealed closed the matter
Highway Safety and Motor investigate this issue and that the Florida Highway because there was
Vehicles ran a driver’s license asked the Florida State Patrol had set up a traffic no evidence of
checkpoint on Election Day Office of the Attorney check stop close to a intimidation or racial
2000 in Leon County, Florida. General about the polling place (about a intent to affect or
This checkpoint was located checkpoint in Leon mile away) located in a intimidate voters.
near (about a mile from) a County. A Voting Section predominantly African-
voting precinct. Another attorney also spoke with American neighborhood.
checkpoint was held in Bay an African-American voter The Voting Section
and Escambia Counties. who was stopped at one of investigation also
According to a highway patrol the driver’s license indicated that the
official, this checkpoint was checkpoints. troopers’ traffic stop plan
not located near a voting had not been pre-
precinct. approved by their
commander, as is the
standard procedure.
Further investigation
revealed that the traffic
checkpoint was in effect
for about 3 hours, and a
higher number of white
drivers were stopped than
African-American drivers.
According the Voting
Section, an African-
American voter who was
Attachment IV
Attachment IV
Attachment IV
Attachment IV
Election-Related Closed Matters and Open Cases Initiated during Calendar Year 2001
No. Matter/Case Jurisdiction Date matter initiated DJ No.
b
1 Matter Florida March 2001 Yes
b
2 Matter Florida June 2001 Yes
b
3 Matter Florida June 2001 Yes
b c
4 Matter Florida August 2001 No
b
5 Matter Broward County, Florida October 2001 Yes
b
6 Matter Miami-Dade County, Florida June 2001 Yes
b
7 Matter Miami-Dade County, Florida June 2001 Yes
8 Matter (election New York, New York July 2001 Yes
monitoring)
9 Matter Georgetown County, South April 2001 Yes
Carolina
10 Matter Seagraves, Texas July 2001 Yes
11 Case Miami-Dade County, Florida March 2001 (case filed in June Yes
b
2002)
12 Case Orange County, Florida June 2001 (case filed in June Yes
b
2002)
13 Case Osceola County, Florida June 2001 (case filed in June Yes
b
2002)
14 Case Berks County, Pennsylvania March 2001 (case filed in Yes
February 2003)
15 Case Tennessee April 2001 (case filed in Yes
September 2002)
Source: DOJ Civil Rights Division.
20
ry 2 2, 20
b
Each of these Florida matters was initiated in the period shortly after the a
anuNovember 2000 election—i.e., in
November or December 2000—and was reported under the general ed on JDJ number for Florida discussed previously
rchiv
(see note a under the summary table for November and
15 845 a December 2000 and note c below). The above dates are
. 18-
the dates they received individual DJ numbers.
bbs, No
v. HoSection initiated in Florida after the 2000 election, the Voting Section initially
c
For the matters that theCVoting
used a general DJ in DN for all work on investigations and inquiries related to the Florida election. This number
number
cited
was opened in November 2000. Subsequently, the Voting Section assigned separate DJ numbers for individual
matters. The 2000 matters in Florida and Hillsborough County, Florida, were inadvertently not given an individual
DJ number.
Attachment IV
Summary of Election-Related Closed Matters and Open Cases Initiated during Calendar Year 2001
Description based on Voting Section’s Voting Section’s Disposition by Voting
Voting Section actions taken to assessment of Section
information address allegation allegations
1. There were allegations The Voting Section’s The Voting Section The Voting Section closed
made by students at investigation consisted determined that the the matter because it
Florida A&M University of phone interviews with problems were likely lacked merit based on the
(FAMU) in Tallahassee Bethune-Cookman attributable to voter evidence gathered during
(Leon County), Florida, students, on-campus confusion, not racial the investigation.
and Bethune-Cookman interviews of FAMU animosity. The Voting
College in Daytona Beach, students and student Section noted that the
Florida, regarding government leaders, incidents of the three
discriminatory treatment of and a review of FAMU students who
African-American students statements taken by a successfully voted were
in the registration process representative of the isolated incidents, and
or at the polls. First-time Service Employees since each student
voters, apparently International Union legal ultimately voted, the
unfamiliar with the department working in problems they suggested
registration process, had association with the did not suggest a pattern
greater difficulty NAACP. of intimidation or
registering to vote. Older attempted vote denial.
students did not seem to A Voting Section
have such difficulty. attorney interviewed The Voting Section
three students on concluded that most of
FAMU’s campus who the allegations were likely
claimed to experience to have been the result of
difficulty voting, but students not being
20
were able to vote. The familiar with the voting
ry 2 2, 20
Voting Section attorney process. Many ua
anstudents
left his contact had e d on J at their
registered
rchi v
information with
15 845 a permanent home
FAMU’s student. 18- addresses and did not
s, No association understand they had to
government
b b
v. H o
for any individuals who re-register in Leon
in DNC wanted to give County. The Voting
cited
statements regarding Section found that voter
voting problems but inexperience and
could not meet with the confusion were to blame
attorney. at Bethune-Cookman, not
any pattern of
The Voting Section discriminatory treatment.
attorney attempted to
contact all ten students
from Bethune-
Cookman, but was only
able to speak with
three. The attorney sent
letters to the remaining
students but never
received responses to
the letters.
Attachment IV
Attachment IV
Attachment IV
Attachment IV
Attachment IV
Attachment IV
Seventeen federal
observers and five
attorneys from the Civil
Rights Division monitored
polling place procedures
during the general
election in Kings County.
Attachment IV
Attachment IV
Attachment IV
Attachment IV
Attachment IV
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Attachment IV
Election-Related Closed Preliminary Investigation and Matters and Closed Cases Initiated during
Calendar Year 2002
No. Preliminary Jurisdiction Date investigation or matter DJ No.
Investigation/Matter/Case initiated
1 Preliminary investigation Hinds County, Mississippi November 2002 No
2 Matter (election monitoring) Apache and Navajo September 2002 Yes
Counties, Arizona
3 Matter (election monitoring) Broward County, Florida November 2002 Yes
4 Matter (election monitoring) Duval County, Florida November 2002 Yes
d
5 Matter Georgia October 2002 No
6 Matter Minnesota October 2002 Yes
7 Matter New Jersey October 2002 Yes
8 Matter (election monitoring) Bexar County, Texas October 2002 Yes
9 Matter Hidalgo County, Texas December 2002 Yes
10 Case Oklahoma August 2002 (case filed in Yes
September 2002)
11 Case Texas March 2002 (case filed in Yes
March 2002)
Source: DOJ Civil Rights Division.
d
According to the Voting Section, this matter did not receive a DJ number inadvertently.
Summary of Election-Related Closed Preliminary Investigation and Matters and Closed Cases Initiated
during Calendar Year 2002
Description based on Voting Voting Section’s Voting Section’s Disposition by
Section information actions taken to assessment 20
, 20of Voting Section
2 2
ary
address allegation
on Januallegations
1. The wife of a soldier from Hinds A Voting Section official ived The AUSA told the The Voting Section
County, Mississippi, assigned to discussed the 45 arch
allegation soldier’s wife that an closed the preliminary
8
15 in the
-official
Guantanamo, Cuba, alleged that with. 1
o 8
an investigation revealed investigation after the
her husband and approximatelyo50 b bs, N
Federal Voting the ballots had been lost AUSA concluded, and
other soldiers from thatNcounty
C v. Hdid Assistance Program in the mail. The FBI the Voting Section
not receive theired inD
absentee ballots in (FVAP) under the agent concluded that the agreed, that there
cit
the mail. Hinds County Department of Defense county officials had was no basis for
acknowledged receiving their (DOD), who said that mailed the ballots to the bringing charges
requests in mid-September of someone in Hinds soldiers, but they had against anyone
2002, and the circuit clerk County told FVAP on been lost or involved in the
confirmed they were mailed in the November 20, 2002, disappeared. The private handling of the ballots
first week of October 2002. that about 20 ballots company that processed because the ballots
had been sent to mail for the county told had been lost in the
The Mississippi Secretary of State’s soldiers in Guantanamo. the FBI agent that they mail and no further
office suggested that the soldiers Voting Section staff also were unable to check the action was needed.
fax in federal ballots but was not phoned the AUSA in zip codes of mail
sure the ballots would be counted. Jackson, Mississippi, processed on a
That office also suggested to the and noted in a memo particular day.
soldier’s wife that she contact the that the AUSA had
Voting Section. She reported to the directed a local Federal
Voting Section that soldiers from Bureau of Investigation
Madison and Rankin counties, also (FBI) agent to interview
in Mississippi, did not receive their the chancery clerk, the
ballots until after the election. She registrar, and all others
also contacted the Assistant U.S. in the chain of custody
Attorney (AUSA) for Hinds County. of the ballots. The
Voting Section also
discussed asking FVAP
to monitor transit of
absentee ballots to
soldiers from Hinds and
Brandon Counties
Attachment IV
Attachment IV
Attachment IV
Attachment IV
Attachment IV
Attachment IV
Attachment IV
Attachment IV
Attachment IV
Attachment V
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Attachment V
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Attachment V
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Attachment V
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Attachment V
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Attachment V
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Attachment V
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(440350)
Civil Rights
VOTING DETERMINATION LETTERS FOR ARIZONA
Division Home
División de
The Civil Rights Division has prepared this site to make Civil Rights
Derechos Civiles
Division documents more available to the public. LEADERSHIP
en español
About the To the extent that any documents do not currently comply with Section 508 Eric S. Dreiband
Division of the Rehabilitation Act because of the poor quality of the original Assistant Attorney
documents used to prepare this site, the Division is applying its available General
Meet the
resources in an effort to create alternative records that are readable.
Assistant CONTACT
Attorney General Determination Letters for Arizona, by date.
Civil Rights Division
How to File a Jurisdiction Description and submission
Complaint Notes (202) 514-4609
and date numbers
Telephone Device for
Press Room 0 20
State of Chapter 159--method of 22, 2
Withdrawn 3-15-74
ary
the Deaf (TTY) (202)
Cases and Arizona circulating recall petitions on Janu 514-0716
Matters 10/09/1973 (V5782) ived
45 arch
(pdf) -158
Publications s, No. 18
bb
Employment
Cochise Cty.
NC v. Ho
Redistricting
College Board in D(7071A)
Opportunities cited
02/03/1975
Civil Rights FOIA (pdf)
Contact the Apache Cty. Bond election; multilingual Declaratory
Division High School procedures judgment denied in
District No. (X7759) Apache County Report a Violation
90 High School District Get a Job
10/04/1976 No. 90 v. United Contact Us
(pdf) States, No. 77-1815
Apache Cty. Special dissolution election and Withdrawn 5-7-80
High School changes relating to election,
District No. including polling places and LEARN ABOUT
90 multilingual procedures (D.D.C. PROSECUTING AND
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ADVERTISEMENT
An absentee ballot in Florida. Almost 2 percent of mailed ballots are rejected, double the rate
for in-person voting. Sarah Beth Glicksteen for The New York Times
By Adam Liptak
Oct. 6, 2012
The board tossed out some ballots because they arrived without the
signature required on the outside of the return envelope. It rejected one
that said “see inside” where the signature should have been. And it debated
what to do with ballots in which the signature on the envelope did not quite
match the one in the county’s files.
“This ‘r’ is not like that ‘r,’ ” Judge Augustus D. Aikens Jr. said, suggesting
that a ballot should be rejected.
20
ry 22, 20
Ion Sancho, the elections supervisor here, disagreed. anua
ed on J “This ‘k’ is like that
rchiv
‘k,’ ” he replied, and he persuaded his 158colleagues
45 a to count the vote.
o. 18-
bs, N
v. Hob
Scenes like thisdwill play
in DN
C out in many elections next month, because Florida
cite
and other states are swiftly moving from voting at a polling place toward
voting by mail. In the last general election in Florida, in 2010, 23 percent of
voters cast absentee ballots, up from 15 percent in the midterm election
four years before. Nationwide, the use of absentee ballots and other forms
of voting by mail has more than tripled since 1980 and now accounts for
almost 20 percent of all votes.
Yet votes cast by mail are less likely to be counted, more likely to be
compromised and more likely to be contested than those cast in a voting
booth, statistics show. Election officials reject almost 2 percent of ballots
cast by mail, double the rate for in-person voting.
“The more people you force to vote by mail,” Mr. Sancho said, “the more
invalid ballots you will generate.”
Election experts say the challenges created by mailed ballots could well
In 2008, 18 percent of the votes in the nine states likely to decide this year’s
presidential election were cast by mail. That number will almost certainly
rise this year, and voters in two-thirds of the states have already begun
casting absentee ballots. In four Western states, voting by mail is the
exclusive or dominant way to cast a ballot.
The trend will probably result in more uncounted votes, and it increases the
potential for fraud. While fraud in voting by mail is far less common than
innocent errors, it is vastly more prevalent than the in-person voting fraud
that has attracted far more attention, election administrators say.
The flaws of absentee voting raise questions about the most elementary
promises of democracy. “The right to have one’s vote counted is as
important as the act of voting itself,” Justice Paul H. Anderson of the
Minnesota Supreme Court wrote while considering disputed absentee
ballots in the close 2008 Senate election between Al Franken and Norm
Coleman.
Some voters presumably decided not to vote after receiving ballots, but Mr.
Stewart said many others most likely tried to vote and were thwarted. “If
20 percent, or even 10 percent, of voters who stood in line on Election Day
were turned away,” he wrote in the study, published in The Journal of
Legislation and Public Policy, “there would be national outrage.”
The list of very close elections includes the 2008 Senate race in Minnesota,
in which Mr. Franken’s victory over Mr. Coleman, the Republican
2 0
incumbent, helped give Democrats the 60 votes in the Senate
ry 22
, 20needed to
a
n Janu
pass President Obama’s health care bill. Mr. Franken
rchiv
ed o won by 312 votes,
a
15 845
while state officials rejected 12,000
, No
. 18-absentee ballots. Recent primary
bs
. Hob
elections in New iYork
n DN
C involving
v Republican state senators who had voted
cited
to allow same-sex marriage also hinged on absentee ballots.
There have been other and more controversial changes since then, also in
the name of reliability and efficiency. Lawmakers have cut back on early
But almost nothing has been done about the distinctive challenges posed by
absentee ballots. To the contrary, Ohio’s Republican secretary of state
recently sent absentee ballot applications to every registered voter in the
state. And Republican lawmakers in Florida recently revised state law to
allow ballots to be mailed wherever voters want, rather than typically to
only their registered addresses.
“This is the only area in Florida where we’ve made it easier to cast a ballot,”
Daniel A. Smith, a political scientist at the University of Florida, said of
absentee voting.
Republicans are in fact more likely than Democrats to vote absentee. In the
2008 general election in Florida, 47 percent of absentee voters were
Republicans and 36 percent were Democrats.
On the most basic level, absentee voting replaces the oversight that exists at
polling places with something akin to an honor system.
The problem is not limited to the elderly, of course. Absentee ballots also
make it much easier to buy and sell votes. In recent years, courts have
invalidated mayoral elections in Illinois and Indiana because of fraudulent
Voting by mail also played a crucial role in the 2000 presidential election in
Florida, when the margin between George W. Bush and Al Gore was razor
thin and hundreds of absentee ballots were counted in apparent violation
of state law. The flawed ballots, from Americans living abroad, included
some without postmarks, some postmarked after the election, some
without witness signatures, some mailed from within the United States and
some sent by people who voted twice. All would have been disqualified had
the state’s election laws been strictly enforced.
In the recent primary here, almost 40 percent of ballots were not cast in the
voting booth on the day of the election. They were split between early votes
cast at polling places, which Mr. Sancho, the Leon County elections
supervisor, favors, and absentee ballots, which make him nervous.
“There has been not one case of fraud in early voting,” Mr. Sancho
20 said.
0
y 22, 2
nuarballots.”
“The only cases of election fraud have been in absentee
n Ja do
archive
845
Efforts to prevent fraud at polling o. 8-15
1places have an ironic consequence,
N
Hobbs,
C v. at Loyola Law School, told the Senate Judiciary
Justin Levitt, a professor
ed in DN
cit
Committee September last year. They will, he said, “drive more voters into
the absentee system, where fraud and coercion have been documented to
be real and legitimate concerns.”
The absentee ballot itself could be blamed for some of the problems. It had
to be enclosed in envelopes containing various information and signatures,
But it is certainly possible to improve the process and reduce the error rate.
Here in Leon County, the rejection rate for absentee ballots is less than 1
percent. The instructions it provides to voters are clear, and the outer
envelope is a model of graphic design, with a large signature box
20
at its
, 20
center. nuary 22
n Ja
chived o
ar
845
15postage,
The envelope requires only standard
, No
. 18- and Mr. Sancho has made
bbs
. Ho
arrangements within Dthe
NC vpost office to pay for ballots that arrive without
cited
stamps.
Still, he would prefer that voters visit a polling place on Election Day or
beforehand so that errors and misunderstandings can be corrected and the
potential for fraud minimized.
“If you vote by mail, where is that coming from?” he asked. “Is there
intimidation going on?”
The board member, Abra Hill Johnson, won the school board race “by what
appeared to be a disproportionate amount of absentee votes,” the arrest
affidavit said. The vote was 675 to 647, but Ms. Johnson had 217 absentee
Election law experts say that pulling off in-person voter fraud on a scale
large enough to swing an election, with scores if not hundreds of people
committing a felony in public by pretending to be someone else, is hard to
imagine, to say nothing of exceptionally risky.
There are much simpler and more effective alternatives to commit fraud on
such a scale, said Heather Gerken, a law professor at Yale.
“You could steal some absentee ballots or stuff a ballot box or bribe an
election administrator or fiddle with an electronic voting machine,” she
said. That explains, she said, “why all the evidence of stolen elections
20
involves absentee ballots and the like.” ry 22, 20
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ADVERTISEMENT
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TABLE
OF Provisional Ballots
CONTENTS 10/15/2018
Introduction Introduction
Federal Provisional ballots ensure that voters are not excluded from
Law the voting process due to an administrative error. They
provide a fail-safe mechanism for voters who arrive at the
Why Are polls on Election Day and whose eligibility to vote is
Provisional uncertain.
Ballots 0
Used? Also referred to asy 22, 202
ar
“challenge on Janu or
ballots”
ived
Legislative 45 arch
“affidavit ballots” in
58
o. 18-1
Role bs, N some states, they are
v. Hob
DNC required by the federal
cited in
How Help America Vote Act
Investigated? of 2002 (HAVA).
When there is
Partial
uncertainty about a
Count
voter’s eligibility—the
potential voter’s name
Reasons
is not on the voter
for
rolls, a required
Acceptance/Rejection
identification
Inform document isn’t
the Voter available or other
issues—the election
Time to official is required to offer the voter a provisional ballot
Determine instead of a regular ballot.
Status
In nearly all of the states, after being cast, the provisional
Which States ballot is kept separate from other ballots until after the
Don't election. A determination is then made as to whether the
Use voter was eligible to vote, and therefore whether the ballot is
Reason States
Full Maine**
Count
Not eligible
Idaho N/A
Minnesota N/A
20
New N/A ry 22, 20
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Hampshire ed on J
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. 18- ballot is rejected when:
New Jersey
b bs , No
A provisional
N.J. Stat. Ann. v. Ho If the voter already cast a provisional
in DNC
cited
§19:53C-17 ballot
N.J. Stat. Ann.
§19:53C-13 If the name, signature, or address
does not match the voter registration
record and cannot be verified.
20
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Virginia anua
A provisional ballot is rejected Jwhen:
ed on
Va. Code § Not eligible to votercinv
hi precinct
15845 a
24.2-653 . 18-
b bs, No to determine right to vote
Unable
v. Ho
in DNC No proper ID
cited
Idaho N/A
Minnesota N/A
Methodology
This information was compiled from various sources,
including state statutes and regulations, state election
Additional Resources
NCSL LegisBrief on Provisional Ballots
If you don't find the information you need, please contact our
elections team at 303-364-7700 or election-info@ncsl.org.
NCSL staff can do specialized searches for legislators and
legislative staff.
We are the nation's most respected bipartisan organization providing states support, ideas, connections and a strong
voice on Capitol Hill.
Members Resources
Accessibility Support
Tel: 1-800-659-2656 or 711
Accessibility Support
Accessibility Policy
Meeting Resources 20
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Calendar anua
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Online Registration rchiv
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Press Room
bbs, No
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Media Contact
in DNC
NCSL in the News cited
Press Releases
Go 29490 Go
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7700 East First Place
Denver, CO 80230
Tel: 303-364-7700 | Fax: 303-364-7800
Washington
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Tel: 202-624-5400 | Fax: 202-737-1069
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PROVISIONAL VOTING
Tagged: Handout
EXPLAINED.
In 2016, just under half of all provisional ballots counted entirely or partially (44%). But for voters who cast
provisional ballots because they were at the wrong precinct (called “out of precinct” voting), or because
they moved within county and did not update their registration, more than 90% of ballots counted in whole
or in part.
Note: An out-of-precinct voter’s ballot will count in all state- and countywide races, and in many other races
at the top of the ticket. But, because an out-of-precinct voter is voting a ballot different from the one at their
own precinct, there may be some local races where their vote doesn’t count.
2. In the case of out-of-precinct voting, a voter should be offered the choice between voting a provisional
ballot at their current polling place, or going to their own precinct where they will be able to vote a regular
ballot. In other cases, a provisional ballot is the voter’s only option for casting a ballot that day.
3. The poll worker will direct the voter to the help desk, where a help desk worker will give them a form,
called a “provisional ballot application.” After filling out the form, the voter will be given the ballot and vote
it.
4. Then, the form and the ballot will be placed in a sealed envelope and sent to the Board of Elections for
review after the election. The voter will be given a phone number and PIN they can use to find out if their
ballot was counted.
5. Following the election, nonpartisan Board of Elections staff will conduct research to determine whether
the voter was properly registered and if the ballot can be counted, in whole 2or 0
202part.
2, in
ary
on Janu
6. Even for voters whose votes do not ultimately count, casting ived
45 arch a provisional ballot will get them registered
-158
for the next election.
s, No. 18
bb
NC v. Ho
Still have questions? Call in D
Democracy North Carolina at 888-OUR-VOTE or visit www.ncvoter.org to
cited
learn more about voting in North Carolina.
DOWNLOAD
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Judgment
• This Court has filed and entered the attached judgment in your case.
Fed. R. App. P. 36. Please note the filed date on the attached
decision because all of the dates described below run from that date,
not from the date you receive this notice.
Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1)
Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)
(4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2))
• The petition shall not exceed 15 pages unless it complies with the
alternative length limitations of 4,200 words or 390 lines of text.
• The petition must be accompanied by a copy of the panel’s decision being
challenged.
• An answer, when ordered by the Court, shall comply with the same length
limitations as the petition.
• If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a
petition for panel rehearing or for rehearing en banc need not comply with
Fed. R. App. P. 32.
Attorneys Fees
• Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees
applications.
• All relevant forms are available on our website at www.ca9.uscourts.gov under Forms
or by telephoning (415) 355-7806.
Case Name
The Clerk is requested to award costs to (party name(s)):
I swear under penalty of perjury that the copies for which costs are requested were
actually and necessarily produced, and that the requested costs were actually
expended.
Signature Date
(use “s/[typed name]” to sign electronically-filed documents)
REQUESTED
COST TAXABLE
(each column must be completed)
No. of Pages per TOTAL
DOCUMENTS / FEE PAID Cost per Page
Copies Copy COST
Excerpts of Record* $ $
Supplemental Brief(s) $ $
Petition for Review Docket Fee / Petition for Writ of Mandamus Docket Fee $
TOTAL: $
*Example: Calculate 4 copies of 3 volumes of excerpts of record that total 500 pages [Vol. 1 (10 pgs.) +
Vol. 2 (250 pgs.) + Vol. 3 (240 pgs.)] as:
No. of Copies: 4; Pages per Copy: 500; Cost per Page: $.10 (or actual cost IF less than $.10);
TOTAL: 4 x 500 x $.10 = $200.
Feedback or questions about this form? Email us at forms@ca9.uscourts.gov