Bay County Democratic Party v. Land

347 F.Supp.2d 404

BAY COUNTY DEMOCRATIC PARTY and Michigan Democratic Party, Plaintiffs, v. Terri Lynn LAND, Michigan Secretary of State, and Christopher M. Thomas, Michigan Director of Elections, in their official capacities, Defendants. and Michigan State Conference of NAACP Branches, Association of Community Organizations for Reform Now, and Project Vote, Plaintiffs, v. Terri Lynn Land, Michigan Secretary of State, and Christopher M. Thomas, Michigan Director of Elections, in their official capacities, Defendants.

No. 04-10257-BC.

No. 04-10267-BC.

United States District Court, E.D. Michigan, Northern Division.

October 19, 2004.

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Michael L. Pitt, Peggy G. Pitt, Pitt, Dowty, Royal Oak, MI, for Plaintiffs.

Gary P. Gordon, Heather S. Meingast, Stephen M. Geskey, Michigan Department of Attorney General, Lansing, MI, for Defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTIONS FOR PRELIMINARY INJUNCTION AND DENYING DEFENDANTS' MOTIONS TO DISMISS

LAWSON, District Judge.

The plaintiffs in these consolidated matters have filed actions against the Michigan secretary of state and her director of elections challenging directives issued by the director to local election officials concerning the casting and tabulation of provisional ballots. Federal law now provides that a voter whose qualification to vote in a federal election is challenged must be allowed to cast a provisional ballot, which is segregated and counted later if the voter's eligibility can be verified. Michigan law requires that voters register to vote in their jurisdiction, that is, in the city, village or township of their residence; and a voter may cast a ballot in person only at the polling place for his or her home precinct, which is a geographical subdivision within the jurisdiction. The plaintiffs contend that federal and State law requires local election officials to count a provisional ballot cast by a voter at any precinct within the voter's home city, village or township. The defendants' have ordered local election officials to count no provisional ballots cast by voters outside of their own precincts. Plaintiffs Michigan Democratic Party and Bay County Democratic Party insist that the defendants' directives violate their rights established under the Help America Vote Act of 2002 (HAVA), Pub. L 107-252, 116 Stat. 1666, 42 U.S.C. § 15301, et seq., and seek to enforce those rights via 42 U.S.C. § 1983. Plaintiffs Michigan State Conference of NAACP Branches (NAACP), Association of Community Organizations for Reform Now (ACORN), and Project Vote contend that the directives are preempted by HAVA, and further assert that the defendants' actions will violate their rights under the Constitution and state laws. NAACP, ACORN and Project Vote also challenge the defendants' directives pertaining to proof of identity for first-time voters who register by mail. All plaintiffs filed motions for a preliminary injunction, and the Court held a hearing and heard testimony in open court on October 13, 2004.

After reviewing the parties' submissions and considering the evidence, the Court concludes that the plaintiffs have standing to assert their claims, HAVA creates individual rights enforceable through Section 1983, Congress has provided a scheme under HAVA in which a voter's right to have a provisional ballot for federal offices tabulated is determined by State law governing eligibility, and the defendants' directives for determining eligibility on the basis of precinct-based residency are inconsistent with State and federal election law. The Court finds that Michigan election law defines voter qualifications in terms of the voter's home jurisdiction, and a person who casts a provisional ballot within his or her jurisdiction is entitled under federal law to have his or her votes for federal offices counted if their eligibility to vote in that election can be verified. The Court also finds that the defendants' directives concerning proof of identity of first-time voters who registered by mail are consistent with federal and State law. The Court will grant in part and deny in part the motions for preliminary injunction and deny the defendants' motions to dismiss.

I. Background, Facts and Proceedings.

Any sensible laws regulating the time, place and manner of voting in a democracy ought to focus on two goals: maximizing the participation of eligible voters and eliminating fraud. However, these goals often are in tension, since regulations that guard against fraud may also raise barriers so high that some eligible voters may not be able to pass. Similarly, relaxing the rules that protect against voting more than once in a single election and verify eligibility may increase the possibility of fraud. Congress generally has left to the States the task of crafting regulations that strike an appropriate balance. See U.S. Const. Art. I, § 4, cl. 1 (providing that the States may prescribe "[t]he Times, Places and Manner of holding Elections for Senators and Representatives"); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986) (holding that the States retain the power to regulate their own elections); Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974) (observing that "as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes"). However, Congress has the authority to "at any time make or alter such regulations." U.S. Const. Art. I, § 4, cl. 1; see Oregon v. Mitchell, 400 U.S. 112, 118, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970) (plurality opinion) (holding that Congress has the power to regulate voter eligibility criteria in national elections), superceded by the Twenty-sixth Amendment.

In the 2000 presidential election, thousands of eligible voters were not permitted to vote due to the improper or erroneous administration of local election laws. See National Commission on Election Reform, To Assure Pride and Confidence in the Electoral Process, at 34 (2001). A joint study conducted by the California Institute of Technology and the Massachusetts Institute of Technology estimated that some three million potential votes were lost because of problems with the voter registration process. See Caltech/MIT Voting Technology Report, Voting: What Is, What Could Be, at 30 (2001) Approximately half of those votes could have been saved, the study concluded, through the use of so-called "provisional ballots." Ibid.

A. Provisional Voting.

Provisional voting is a means by which voters whose names do not appear on the election-day registry at their polling place can nonetheless cast votes on "provisional ballots." Ibid. These provisional ballots are segregated from the regularly-cast ballots and counted only upon verification by election officials that the voter is in fact registered to vote and was either erroneously excluded from the rosters or, in some cases, mistakenly appeared at the incorrect polling place. Ibid. A voter partakes in the process by placing his provisional ballot in an envelope bearing his signature and containing information about the circumstances surrounding the provisional vote sufficient for follow-up investigation. Ibid. If elections officials later verify the voter's eligibility, then the provisional ballot is removed from the segregated envelope and counted toward those offices for which the voter is eligible to vote. Ibid. If election officials are unable to determine the voter's eligibility, the ballot remains sealed and the vote uncounted. Ibid.

B. The Help America Vote Act of 2002.

In 2002, Congress enacted the Help America Vote Act (HAVA), 42 U.S.C. § 15301 et. seq., to address several problems experienced during the 2000 federal election. For example, Subtitle A of Title II, part I provides for the establishment of an election assistance commission that serves, among other things, as a "national clearing house and resource for the compilation of information and review procedures with respect to the administration of Federal elections ..." Section 202, 42 U.S.C. § 15321. This commission conducts studies and issues reports as part of its mandate. Ibid. Subtitle D of Title II directs funding to states for improving the administration of federal elections and access to voters with disabilities, research grants for new technologies, and pilot programs for testing new equipment and technologies. Section 251 et seq, 42 U.S.C. § 15401 et seq. Title III directs state officials to establish voting system standards, provide for a computerized statewide voter registration list, follow certain requirements for voters who register by mail, and adhere to certain minimum standards in the conduct of federal elections. Sections 301, 303-304; 42 U.S.C. § 15481, 15483-84.

Section 302 of the Act requires the States to implement a procedure that allows a voter whose eligibility is challenged to cast a provisional ballot and to have such a system in place "on and after January 1, 2004." 42 U.S.C. § 15482(a), (d). That Section provides:

If an individual declares that such individual is a registered voter in the jurisdiction in which the individual desires to vote and that the individual is eligible to vote in an election for Federal office, but the name of the individual does not appear on the official list of eligible voters for the polling place or an election official asserts that the individual is not eligible to vote, such individual shall be permitted to cast a provisional ballot as follows:

(1) An election official at the polling place shall notify the individual that the individual may cast a provisional ballot in that election;

(2) The individual shall be permitted to cast a provisional...