Morales v Handel or The Origin of the US DOJ Ruling on Voter Verification

I’ve recently stumbled across the document started the process that brought about the DOJ letter I have already written about. That document is the North GA US District Court ruling in the Morales v Handel case, and this ruling is very enlightening on the Secretary of State’s efforts to disenfranchise US citizens.

To those who have challenged me to state a single name of someone disenfranchised by the Secretary of State’s voter verification ruling, I name Mr. Jose Morales.

To those saying this is a political ploy by the Obama Administration, I point out that this ruling came down 9 days before the November 2008 election that Mr. Obama won and with just under three full months left in President Bush‘s administration.

Essentially what happened with Mr. Jose Morales is this: he became a naturalized US citizen in November 2007 while living in my old neck of the woods in Cherokee County and attending my alma mater of Kennesaw State University. Mr. Morales got his Georgia driver’s license in 2006, before he became a citizen. In September 2008, he registered to vote in what was being billed as a ‘historic’ election. On Sept 19, he was sent a letter from his local county registrar saying that he had to provide verification of his citizenship. The county registrar sent him a second letter on Sept 26 telling him that he might not be able to vote because they couldn’t verify his citizenship. That very same day, he presented his passport as proof of citizenship. It is not known at this time whether the letter had already been dropped in the mail, or if this was done after he had already been in the office. The passport was accepted and the next day the voter records were changed to indicate Mr. Morales was registered and eligible to vote.

But obviously, the letter was already in the mail claiming he was NOT eligible to vote, and he knew he had already been to the county registrar’s office once to prove that he WAS eligible to vote. So on October 9, 2008, Mr. Morales filed suit under Section 5 of the Voting Rights Act. Specifically, Mr. Morales asked that a temporary restraining order be granted “specifically directing the Georgia Secretary of State to: (1) cease using any citizenship data derived from the Department of Driver Services’ database ; (2) direct all county boards of elections to cease using any lists derived from that citizenship data as the basis for voter challenges, correspondences, hearings, or removals ; (3) direct all county boards to immediately send letters rescinding previous correspondences based on the database matching lists ; (4) report any county that refuses to comply ; and (5) rescind the Secretary’s prior 24 September 2008 memorandum on absentee voter procedures .” (Page 4)

Here’s where we begin to get into the ‘good’ stuff:

First, on page 8, the Court says “It is important to note that Georgia has no statutory framework within which same-day registration and voting can take place . A person who applies to register to vote for the first time in Georgia is not “registered” to vote at the time he or she submits a voter registration application to one of the 159 county registrars. ” … “The Georgia Election Code further provides that a board of registrars may hold a hearing, upon three days written notice, to examine the qualification or disqualification of applicants or electors and may require the production ofdocuments and subpoena witnesses” (OCGA 22-2-228) Note that this is the ’3 day’ reference in the DOJ letter that I noted in my first post on this subject that I couldn’t find. Just from looking at it and where it is once I knew where to find it, it is apparent that either a lot of research or intimate knowledge – such as that hopefully possessed by the Secretary of State – of the law would be required to find this provision.

Now, it turns out that in Georgia we have this thing known as a ‘challenged’ ballot that is used extremely rarely according to the Court. This ballot is specifically used with “individuals whose status as a registered elector is challenged by either the registrar or another citizen” (Page 10). From what I read of the background, Mr. Morales wasn’t told of this classification of ballot originally, he was simply told that he would not be able to vote – even though he was a citizen of both the United States and the State of Georgia.

Now, when this issue went to court, evidently Ms. Handel was there herself and personally assured Mr. Morales that he would get to vote. However, while this is the outcome Mr. Morales was seeking for himself, he also challenged the lack of preclearance of the changes to the voter verification process I discussed in the first post.

Where this order really begins to get interesting for Ms. Handel is on page 13, where the Court states “Here, given the strong public interest in maintaining confidence in the electoral process, the voluntary nature of the actions undertaken to provide temporal relief to Morales in response to the citizenship evidence he submitted, the ability of the Secretary or other election officials (i .e ., the 159 county voter registrars in Georgia) to resume the process and procedures challenged, and the press of time involved in the election cycle, the court is persuaded that the exception to the mootness doctrine exists . The Secretary also concedes Morales and a few thousand other voter applicants were subject to the citizenship verification procedures he now challenges even though Morales himself was cleared to vote.” (emphasis mine) The ‘exception to the mootness doctrine’ reference is basically explaining that even though this particular case has been resolved as far as Mr. Morales himself was concerned, it raised significant questions that the Court felt it needed to address and had the authority to do so.

In discussing Section 5 in particular, the Court notes “All changes in the voting process of a covered state would have to be precleared by the Department of Justice in order for that state to implement it, “so long as those changes reflect policy choices made by state or local officials.”" and that “Congress intended to reach any state enactment which altered the election law of a covered State in even a minor way” (emphasis mine) This results in the infamous ‘moving the polling location to the other side of the wall’ complaint many of us Georgians have with Section 5. And note throughout this that I am not defending Section 5 in any way, shape or form. It needs to be repealed immediately, but since it is currently law, I expect my elected officials to follow it to the letter – particularly the chief election official in the entire State.

The Court then begins to go into an examination of whether it feels a Section 5 violation has occurred. In the process, the Court notes that even though the Help America Vote Act (which this Voter Verification process was supposed to comply with) had become law in 2002, and yet Georgia only began to comply with this law in March 2007 – a little over two years ago, even though the law is now seven years old. I will grant Ms. Handel that this was within two months of her taking over the office from Cathy Cox, her Democrat predecessor.

Beginning at the bottom of page 18 of this 27 page document, a discussion of the procedures of the Voter Verification process is begun, and after noting how discrepancies arise, the Court says this: “In the absence of clear guidance from the Secretary, registrars for the 159 counties in Georgia could conceivably adopt a range of disparate methodologies for resolving these discrepancies. At the time of the 22 October hearing, these voter verification processes had identified 50,378 applications with potential data mismatches in any of the listed categories, 4538 of which involved questions of citizenship.” Here, a footnote notes that “The vast majority of these came from applications involving individuals trying to register for the first time — 3821 of the 4538 citizenship mismatches and 47,190 of the 50,378 total mismatches . At the time of the hearing, Georgia had processed and submitted for verification more than 550,000 registration applications.” (Page 20)

And all of this was just the set up. In the actual discussion, the Court notes that “According to the DOJ, the appropriate baseline would be the system Georgia had in place at the time HAVA was adopted . At that point in time, the state did not have an automated system for verifying registration applicant information nor any standards for operating that system . Given this baseline, there are at least two features of Georgia’s post-HAVA system that constitute changes that require preclearance . One is the comparison of information in the DDS and SSA databases that results in the identification of applicants whose eligibility could not be verified . The other is the disparate methodologies employed by registrars in attempting to evaluate, notify and qualify potential ineligible voters. Though these could both be characterized as exercises of local discretion, permitted under federal and state law, in response to the federal mandate of HAVA, this does not shield them from review under Section 5.”

In other words, the Secretary of State is directly at fault for one of the violations of Section 5, namely the change to the Voter Verification procedure itself, and indirectly at fault for not providing “clear guidance” to the local registrars on how to handle ‘discrepancies’.

On Page 22, the Court notes Ms. Handel’s brazen attitude that these changes were not subject to Section 5 – even though it was clear to the Court that they were – and that she had only begun the process for preclearance of these changes upon learning that she was about to get hit by a lawsuit, and she was trying to cover her tail. In the Secretary’s defense, once she did start trying to cover her tail, she began to fully cooperate with the US Attorney General and Department of Justice.

The result of this order by the Bush Administration US District Court – not the Obama Adminstration Department of Justice, as Ms. Handel has been claiming of late – was that the Voter Verification program was to be halted “unless and until preclearance is obtained“.

With the DOJ letter, the Obama Administration Department of Justice came in and agreed with the Bush Administration US District Court, making the Court’s decision to temporarily halt the Voter Verification program permanent.

So a Republican – Ms. Handel’s own Party – administration made a decision, and a Democratic administration agreed with the decision, and yet Ms. Handel wants to try to paint the decision as entirely the Democratic administration’s?

Like I said in the first post,

I completely agree [with Ms. Handel] that “clearly politics [has taken] priority over common sense and good public policy” and “It is a sad day for the rights of our state and the integrity of our elections”.

The problem, Ms. Handel, is that is is YOUR politics that have taken priority over common sense and good public policy.