2006 COMMENTARY

August 02, 2006

Back to the “Honor System”: Judge Deals Major Blow to Election Security

By Jonathan Bechtle

Yesterday a federal district court in Seattle handed down a decision that undermines the security of your ballot this fall. The case is called Washington Association of Churches v. Secretary of State Reed, and is the brainchild of a New York-based group called the Brennan Center for Justice.

If you’ve never heard of them before, don’t feel bad. All through the recounts and lawsuits of the 2004 gubernatorial election, and despite the thousands of legal voters who were disenfranchised by illegal votes and counting errors, the Brennan Center hasn’t once stepped foot into the state of Washington to help bring integrity (or what one might call “justice”) to our elections system.

Now they’ve finally stepped in, but what they’re seeking can hardly be called justice.

Three months ago the Brennan Center filed a lawsuit on behalf of the church association and similar groups against Secretary of State Reed, with the purpose of decreasing election security. Its beef was with how our state adds people to the voter rolls.

Because of a new federal law, in 2004 the legislature passed a bill requiring every new voter registration to be matched against a person’s driver’s license or social security file. This ensures people are who they say they are, and helps catch any errors before the new registration is added to the system.

This system has been working well, although not perfectly since the licensing and social security databases aren’t flawless. Sometimes the state has to contact a voter to make sure everything matches. But if the state makes an error, there’s a failsafe for the voter: If the registration has not been ironed out by Election Day, the person can still vote a provisional ballot, which will be counted once the voter proves his eligibility. No one is disenfranchised by the matching requirement.

In their lawsuit, the Brennan Center attorneys claim the opposite; they say “tens of thousands” of voters would be disenfranchised. Ironically, their victory in court on Tuesday makes voter disenfranchisement much more likely.

Why? Because removing the “match” security procedure is like declaring open season for voter registration fraud. Anyone can make up an identity, fill out a registration form, and be registered to vote this fall. Or a registration containing errors will create a duplicate voter file. And if an ineligible voter disenfranchises you by casting an illegal ballot, too bad. There’s no failsafe option for you; your ballot gets cancelled out.

Judge Ricardo Martinez granted Brennan Center’s request for a preliminary injunction, stopping the “match” process for the 2006 primary and general election. He ruled that the state didn’t show why matching a voter’s information was necessary to prove a person’s eligibility, and that such a law conflicted with the federal Help America Vote Act. But what is more important for voter eligibility than a valid name, address, birth date, and other identifying information?

Washington voters have already seen how poorly the election system works when it operates on an “honor system.” Martinez’s decision forces election officials to take the word of the voter. He also missed the phrase in the Help America Vote Act allowing states to enact verification standards stricter than the federal requirements. The Washington law improved on the federal Act, it didn’t conflict with it.

The judge even had the audacity to cite the 2004 gubernatorial election as a reason to register voters without verifying their identity. He says:

“Defendant argues that the public’s interest in preventing voter fraud weighs against an injunction in this case. The Court disagrees. Given Washington’s most recent governor’s election, where the winner was decided by just hundreds of votes, the Court finds that the public interest weighs strongly in favor of letting every eligible resident of Washington register and cast a vote.”

But, of course, now the judge won’t allow the state to actually verify eligibility…

We hope Secretary of State Reed and Attorney General McKenna will take whatever steps necessary to fight this attack on our election security.

Jonathan Bechtle is legal counsel for the Evergreen Freedom Foundation. Previously he served as Director of EFF’s Citizenship and Governance Center. He also represents EFF on the board of the Washington Coalition for Open Government. Prior to joining EFF he was the senior legal assistant for a non-profit legal advocacy firm in the Washington, D.C. area, and has worked as an aide to state senators in Georgia and Indiana, and as a medical analyst for the Indiana Attorney General. Jonathan earned a juris doctorate from Oak Brook College of Law in Fresno, California, and is a member of the California and Washington Bars.

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