Secretary Brunner Clarifies Challenge Laws to Protect Voters

COLUMBUS, Ohio – Secretary of State Jennifer Brunner took action Friday to protect the rights of all eligible Ohio voters and to protect boards of elections from litigation likely to arise from Ohio law that presents conflicts with federal law and the U.S. Constitution.   

Providing guidance to local election officials, Secretary Brunner directed that 60-day notices sent by boards of election to voters that are returned as undeliverable cannot be used as the sole reason for cancelling an Ohioan’s voter registration.  These notices are required by law to be sent to voters by boards of elections. 

Secretary Brunner also called on the General Assembly to amend this voter registration challenge law passed in 2006, urging that the law conflicts with federal law and violates the U.S. Constitution.   

“As we prepare for a November 4, 2008, election where every eligible voter who wants to vote should be able to do so freely, we seek to protect Ohioans’ fundamental right to vote – to have their voices heard on critical decisions about all levels of their government,” Secretary Brunner said. 

“This directive will help boards of elections deal, in a consistent manner, with potential voter registration challenges – protecting eligible voters and clarifying the circumstances in which boards are legally and constitutionally able to cancel ineligible voter registrations.”  

In the past, “vote caging” was attempted when a political party sent nonforwardable notices to voters that, when returned to the political party, alerted the party to voters who may be vulnerable to challenges to their rights to vote.  Unfortunately, returned notices disproportionately impact minority and low-income voters.   Friday’s directive makes sure statutorily-required notices now paid for by counties under a 2006 state law cannot be the sole basis for canceling voter registrations and denying Ohioans their rights to vote. 

Secretary Brunner pointed out that mail, such as the 60-day notice, may be returned for any number of reasons that do not impact an eligible Ohioan’s right to vote. 

In Friday’s directive, Secretary Brunner also advised boards of elections that providing due process on challenges to voter registrations will diminish the likelihood of election lawsuits that can disrupt election planning and administration.  The directive requires:  providing every challenged voter with notice and an opportunity to be heard; holding a public hearing on all challenges; and holding all hearings prior to Election Day. 

Secretary Brunner contends that Ohio’s 2006 voter registration challenge law is legally and constitutionally deficient because the statute allows a board of elections to cancel a voter’s registration, depriving a voter of the right to exercise his or her vote without first providing due process required under the U.S. Constitution.  

Because of this deficiency, Secretary Brunner has called on Speaker Husted and President Harris to quickly amend the law to require notice of a challenge, and the opportunity to confront adverse witnesses and be heard in a public hearing. 

Facts about the 60-day notice of election: 

Under Ohio law, county boards of elections must mail a nonforwardable “notice of election” 60 days before November 4, 2008, that is, on September 5, 2008.  This mailing is required to be sent today, the day Brunner has released her directive to boards of elections.  If the notice is returned for any reason, boards must note this fact in the poll book or on poll lists and require a voter to prove with ID or other information that he or she is qualified to vote a regular ballot.  Otherwise, such a voter must vote provisionally placing the right to have that ballot counted in jeopardy.    

Since the 60-day notice is not forwardable, the notice may be returned for simple and irrelevant reasons like a hold on a voter’s mail during a vacation; a data entry error at the board of elections; or a mail delivery error.   

Facts about the National Voter Registration Act:

The Secretary of State urges that, under the federal National Voter Registration Act (NVRA), effective in 1993, Ohio boards of elections should not cancel a voter's registration due to nonforwardable mail unless or until the following occur:

-- The board sends a voter a prepaid, preaddressed return service card

-- The card is sent via forwardable mail

-- The voter fails to vote in two federal elections after this notice is sent

Facts about Ohio’s voter challenge law:

R.C. 3503.24
Permits a challenge of the right to vote of any registered elector by any qualified elector of the county at the office of the board of elections not later than twenty days prior to the election. The challenge, with the reasons for the challenge, shall be filed with the board on a form prescribed by the secretary of state and shall be signed under penalty of election falsification.  A board’s determination on such a challenge may result in a voter’s removal from the voter registration rolls.

R.C. 3505.19
Permits any person registered as an elector to be challenged by a qualified elector “as to the registered elector’s right to vote prior to the nineteenth day before the day of an election. Such qualified elector may, either by appearing in person at the office of the board of elections, or by letter addressed to the board, challenge the right of such registered elector to vote. Any such challenge must state the ground upon which the challenge is made, and must be signed by the challenger giving the challenger’s address and voting precinct. If the board is satisfied, in accordance with division (B) of section 3503.24 of the Revised Code, that the challenge is well taken, the director shall so indicate on the registration cards and shall so notify in writing the judges of the precinct. If such challenged person offers to vote at such election, the challenged person shall be examined as in the case of an original challenge. If such person establishes, to the satisfaction of the judges, that the person’s disabilities have been removed and that the person has a right to vote, the person shall be permitted to vote.”

Facts about due process:

It is also the Secretary of State's position that, under the U.S. Constitution, boards of elections should not rule favorably on any voter registration challenge without providing the challenged voter due process (notice of the challenge and an opportunity to confront adverse witnesses and to be heard in opposition to the challenge). 

Secretary of State Directives 

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Media Contacts:

Jeff Ortega, Assistant Director of Communications, Media, 614.466.0473
Kevin Kidder, Media Relations Coordinator, 614.995.2168