Tuscarawas County Board of Elections
Courthouse
101 E. High Ave.
New Philadelphia, OH 44663

BY HAND DELIVERY

Dear Members of the Board of Elections:

On Friday, October 22, 2004, a number of identical and facially deficient challenges were filed with this Board purportedly pursuant to ORC 3503.24. As demonstrated below, the Board should dismiss all of these challenges en masse because they are legally insufficient under Ohio and federal law and because under the present circumstances the hearings cannot possibly afford due process required by Ohio law and the United States Constitution. Consider that for those challenges arising from a claim of a problem with the recorded address, any notice of a hearing sent to those addresses will not be effective notice. Indeed, sending tens of thousands of notices just days before the election requiring registered voters to attend a hearing in order to establish their voter eligibility—a fact that they have already attested to in their voter registration forms—would be a substantial burden that would have the effect of intimidating voters and suppressing voter turnout.

Accordingly, on behalf of the Ohio Democratic Coordinated Campaign and Kerry-Edwards 2004, Inc.,[fn1] I respectfully request that this Board immediately convene and determine whether the challenges should be dismissed.

[fn1] The Kerry-Edwards campaign has not challenged a single voter registration. I believe that preserving our democratic system is more important than the outcome of any particular election. Accordingly, our campaign has not, and will not, challenge any voter whom elections officials determine is properly registered to vote. Our campaign has appointed challengers to certain precincts with a history of voting Democratic so that we can be heard on the right of each registered voter to cast a ballot that will be counted.

FACTS

Last Friday, October 22, 2004—just eleven days prior to the Election—35,000 challenges to registered voters were filed in 65 different counties. All of the filed challenges are essentially identical. They state that the "reason" for the challenge is that the person is "unqualified on the ground that the person is not a resident of the precinct where the person offers to vote." The remedy sought in each and every challenge is also identical: "The person's name shall be removed from the list and the person's registration form canceled." In other words, the challenged voters would be fully deprived of their fundamental right to vote. Most of the challengers have each challenged several hundred voters — making abundantly clear that the challengers have no personal knowledge of the qualifications of any of the voters they have challenged. Republican challenger Anna Mae Hershberger has filed at least 29 identical challenges in Tuscarawas County.

Despite the dramatic remedy sought by these challenges, they are based solely on a blanket recitation of a basis for voter ineligibility—namely, the forms state the conclusion that the challenged voter does not meet the residency requirement. The challenges themselves are entirely unsubstantiated. The eligible voters are possibly being challenged solely because a Republican mailing sent to the voters was returned as undeliverable.

Our nation's history has too many examples of efforts by those in power to keep others from voting. Within my lifetime, some states imposed poll taxes to deter poor and working class voters from voting. Indeed, our primary Civil Rights Laws were inspired by the need to protect freed slaves from intimidation and violence when they tried to register and vote. 42 U.S.C. §§ 1983, 1985. Please, let us not add to this sad history.

ARGUMENT

I. THE MASS CHALLENGES ARE LEGALLY INSUFFICIENT UNDER OHIO LAW

For at least two reasons, the Board should dismiss the mass challenges brought by the Ohio Republican Party as insufficient as a matter of Ohio law.

First, the challenges facially fail to meet the most minimal of requirements that is necessary in order to trigger a hearing under Ohio law. Pursuant to ORC 3503.24, a hearing as to a voter's entitlement to remain on the registration list is triggered only upon the filing of a challenge that specifically prescribes the reasons for the challenge to a voter's eligibility. ORC 3503.25. Rather than articulating reasons for challenging these registered voters, however, the mass challenges merely make a blanket recitation of a basis for ineligibility—precinct residency. See Sample Challenge. This is an insufficient showing under both the text and scheme of the statute, which clearly contemplates individualized and specific allegations, rather than mass challenges filed pursuant to stock and conclusory allegations.

Indeed, allowing hearings to go forward when challenges are based upon nothing more than blanket allegations of voter ineligibility would be both unworkable and arbitrary. Mass, unsubstantiated challenges that trigger a hearing proceeding would be unworkable because a party could simply bring the election machinery to halt by challenging a vast number of registered voters.

Even if the number of challenges were not overwhelming large, a system that required any randomly selected voter to attend a hearing based upon nothing more than a conclusory statement of voter ineligibility, would be profoundly unfair and arbitrary. Such a system would essentially require that randomly selected voters must register to vote twice. First, via the regular voter registration form. Second, as a result of the unsubstantiated challenge, they would be required to register again at a 3503.24 hearing. But "voter challenge procedures adopted by the Board [must be] 'consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate.'" Charfauros v. Board of Elections, 249 F.3d 941, 951 (9th Cir. 2001) (quoting Bush v. Gore, 531 U.S. 98 (2000)).

Second, even if these challenges are premised upon the return of undeliverable mailings—as is suggested in the Ohio Republican Party's press release—state election law specifically contemplates, and rejects, the proposition that the return of a single piece of nonforwardable mail addressed to a voter is, by itself, legally sufficient grounds for canceling that voter's registration. Since the challenges at issue here rely solely on such evidence, the Board must dismiss them as insufficient to initiate the notice and hearing procedure of R.C. § 3503.24.

R.C. § 3503.19(C) prescribes the procedure county boards of elections must follow upon receipt of a voter registration application (if the board "is satisfied as to the truth of the statements made" therein):

[the board] shall register the applicant and promptly notify the applicant of the applicant's registration and the precinct in which the applicant is to vote. The notification shall be by nonforwardable mail, and if the mail is returned to the board, it shall investigate and cause the notification to be delivered to the correct address; or if it determines that the voter is not eligible to vote for residency reasons it shall cancel the registration and notify the registrant, at the last known address, of a need to reregister. (emphasis added)

Thus, return of nonforwardable mail is only the first prong of the statutorily prescribed process leading to either correction of address or purge; such return triggers a duty on the part of the board to investigate the voter's residence. Only if such an investigation produces evidence from which the board can "determine[] that the voter is not eligible to vote for residency reasons" may the board purge the voter from the rolls. This burden of proof imposed on the board protects voters from cancellation of registration based on easily correctable address errors.

Therefore, to the extent the challenges at issue are based solely on the return of a nonforwardable registration notification mailed by county boards of elections, such challenges must be dismissed, since § 3503.19 sets forth specific additional steps the board must take before purging a voter from the rolls. The statutory scheme carefully protects voters against unjustified purges by forcing boards of elections to engage in a thorough, individualized investigation of a voter's residence before making the decision to purge. Allowing the challenges at issue to proceed immediately to a hearing without any further offer of individualized proof shifts the burden of proof allocated by statute to the challenger, as described above, to the challenged voter, who must show up at a hearing and be prepared to defend his or her registration against a challenger. R.C. §3503.24. This is a substantial burden on the fundamental right to vote.

In addition, to the extent that the challenges are based on the return of a piece of nonforwardable mail sent by a non-governmental party, they must be dismissed as a crude attempt to circumvent the statutory requirements outlined above by simply substituting a private mailing for the state-issued notification. Were challenge hearings permitted to proceed without first requiring challengers to offer individualized proof of nonresidence, private citizens could, through the § 3503.24 procedure, purge voters from the rolls where the state was prohibited by statute from doing so.

Finally, the statute outlines even more stringent requirements for purging voters who have registered by mail:

If a notice of the disposition of an otherwise valid mail registration application is sent by nonforwardable mail and is returned undelivered, the person shall be registered and sent a confirmation notice by forwardable mail. If the person fails to respond to the confirmation notice, update the person's registration, or vote in any election during the period of two federal elections subsequent to the mailing of the confirmation notice, the person's registration shall be canceled.

§ 3503.19(C)

In summary, the return of a piece of nonforwardable mail addressed to a mail registrant marks the beginning of a four-year period during which the state cannot revoke the voter's registration. Only after four years have elapsed may the state act, and only if the voter remained silent during that period. Allowing private citizens to trigger the notice and hearing process of § 3503.24 by producing only evidence which, when received by the state, simply begins a four-year waiting period, would completely undermine Ohio's carefully crafted statutory protections against unwarranted and illegitimate voter purges.

In every provision of the Ohio election code addressing the effect of a returned mailing, the Legislature has made clear that such an event is never sufficient to shift the burden of proving residence to the voter. Rather, the code requires in every instance that additional steps be taken to verify whether the returned mail is evidence of some problem with residency or merely the result of happenstance or administrative error.

II. UNDER THE CIRCUMSTANCES FAIR HEARINGS CANNOT TAKE PLACE AS ARE CONSTITUTIONALLY AND STATUTORILY REQUIRED BY DUE PROCESS

In addition to Ohio law, basic notions of fairness and due process require that these mass challenges by dismissed. Holding hearings that lead to the disenfranchisement of the challenged voters would violate constitutional guarantees of due process and would be fundamentally unfair. Because the voters did not receive mailings allegedly sent to them by the Republican Party, it is absurd to expect that a substantial number of them will receive any hearing notification sent by the board of elections. If, for example, the Republican mailing was returned as undeliverable because a correct address of 1789 Main Street was entered into the voter registration system as 1798 Main Street, then a hearing notice mailed to that same incorrect address will fail to provide adequate notice to the properly registered voter residing within the precinct. Similarly, mail could be returned because of innocent errors in completing the registration card, transcribing the card into electronic databases, printing the address, optical scanning by the Post Office, sorting errors, or by the voter having a stuffed mailbox. Any of these errors could be easily detected and corrected when the voter presents to a polling official to vote. Any hearing would be a one-sided affair, unfairly depriving the voters of an opportunity to exercise their rights — enshrined both in the United States Constitution and in the Ohio Revised Code — to defend their qualifications to vote

Numerous courts have held that the right to vote is a liberty interest protected by the Due Process Clause of the Fourteenth Amendment, and may not be deprived without notice and an opportunity to be heard. See Bell v. Marinko, 235 F.Supp.2d 772, 777 (N.D. Ohio 2002); Doe v. Rowe, 156 F.Supp.2d 35, 48 (D. Me. 2001); Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F.Supp. 1354, 1358 (D. Ariz. 1990); United States v. Texas, 252 F.Supp. 234, 250 (W.D.Tex.), aff'd mem. per curiam, 384 U.S. 155 (1966); Ballas v. Symm, 351 F.Supp. 876, 893 (S.D. Tex. 1972); United States v. Atkins, 323 F.2d 733, 743 (5th Cir. 1963). These courts have so held because "[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined." Wesberry v. Sanders, 376 U.S. 1, 17 (1964); Reynolds v. Sims, 377 U.S. 533, 562 (1964) ("Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized."). Indeed, voting is the right that distinguishes citizenship as the highest office in our land.

Accordingly, Section 3503.24 of the Ohio Revised Code mandates a hearing before voter may be stripped of his or her right to vote pursuant to a pre-election challenge. The statute provides numerous procedural protections, including written notice of the hearing sent by first class mail, the right to appear at the hearing, the right to testify, the right to call witnesses, and the right to be represented by counsel. Under normal circumstances, these provisions provide sufficient protection to comport with "the central meaning of procedural due process . . .: 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.' " Fuentes v. Shevin, 407 U.S. 67, 81 (1972) (quoting Baldwin v. Hale, 68 U.S. 223, 233 (1863)); see also Mathews v. Eldridge, 424 U.S. 319 (1976).

But these provisions are meaningless if many of the challenged voters never learn of the challenge. In the normal course of events, this is unlikely to occur — sending a mailing is likely to apprise the voter of the hearing. But this situation is very different. Here, the sole basis for the challenge is the fact that a previous mailing allegedly failed to reach the voter. Therefore, in many instances notice by mail would be an absurd charade and would violate due process. "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections." Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 84 (1988) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Indeed, "when notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected." Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 174 (1974) (quoting Mullane, 339 U.S. at 314) (emphasis added); see also Dusenbery v. United States, 534 U.S. 161, 168 (2002).

Here, the only means of providing notice of the hearing is practically guaranteed to fail to reach the voter. Notice by mail would be but a "mere gesture" and would not provide due process. In fact, if by some chance the notice did reach the voter, it would prove that the voter does reside within the precinct — thus wholly undermining the sole basis on which the challenge was made, resolving the challenge in favor of the voter, and obviating the need for a hearing. That properly notified voter, however, would be substantially burdened by having to attend an unnecessary hearing. Indeed, the notice of hearing could have a substantial voter suppression effect.

III. THE CURRENT CHALLENGES ARE BARRED BY LACHES.

The impracticality of accomplishing even minimal due process before the election imposes a duty on the challenger to file challenges at the earliest opportunity. The Ohio Supreme Court has often recognized that the doctrine of laches will prevent the Court from considering election issues that are not raised at the earliest opportunity. "Relators in election cases must exercise the utmost diligence." State ex rel. Fuller v. Medina Cty. Bd. of Elections, 97 Ohio St.3d 221, 2002-Ohio-5922, 778 N.E.2d 37, ¶ 7. "Therefore, relators requesting extraordinary relief in an election related matter are required to act with the required promptness, and if they fail to do so, laches may bar the action." Id., citing State ex rel. Newell, 93 Ohio St.3d at 595, 757 N.E.2d 1135. See also State ex rel. Demaline v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 523, 526-527, 740 N.E.2d 242, quoting State ex rel. Landis v. Morrow Cty. Bd. of Elections (2000), 88 Ohio St.3d 187, 189, 724 N.E.2d 775 (" `[W]e have held that a delay as brief as nine days can preclude our consideration of the merits of an expedited election case' ").

It matters not that the law permits challenges to be filed up to the eleventh day before the election. Laches is an equitable doctrine that surpasses any statute of limitations by imposing a duty of promptness on the petitioner to avoid prejudice to other parties and the tribunal. "Our consistent requirement that expedited election cases be filed with the required promptness is not simply a technical nicety." State ex rel. Carberry v. Ashtabula (2001), 93 Ohio St.3d 522, 524, 757 N.E.2d 307. Expedited election cases "implicate the rights of electors underlying the statutory time limits of R.C. 3505.01 and 3509.01." State ex rel. Ascani v. Stark Cty. Bd. of Elections (1998), 83 Ohio St.3d 490, 494, 700 N.E.2d 1234.

In Campaign to Elect Larry Carver Sheriff v. Campaign to Elect Anthony Stankiewicz Sheriff, 101 Ohio 256, 2004-Ohio-812, the Court dismissed an action pursuant to the Doctrine of Laches where the action was filed just 13 days before the election. Here, the challenges were filed only 11 days before the election. They are barred by laches.

CONCLUSION

Given that the Ohio legislature has determined that a voter who is subject to a pre-election challenge has the right to appear and testify at the hearing, the right to call witnesses, and the right to counsel, it would make little sense to conclude the legislature contemplated convening such hearings in cases where the voter is quite likely not to be informed of those rights. Without the instant challenges, any registered voter will still need either of the following to vote: (1) a signed application for an absentee ballot, which would then have to be mailed to the voter at the address provided by that voter; or (2) a personal presentation to a polling place where trained poll workers will be able to confirm that voter's registration. This traditional and lawful process is sufficient to address the challenger's concerns. Further, it fulfills the purpose of Ohio and federal law to have each registered voter cast a vote that will be counted. Due to the procedural safeguards mandated by both Ohio statute and the U.S. constitution, no county should entertain a pre-election challenge based solely upon an allegation that a mailing sent to the address listed for the voter was returned to sender.

Finally, I must note that the current challenges are primarily against recent registrations. To strike any of the large number of recent registrations would have a disparate impact against younger voters, voters who had to move due to loss or change of employment, and voters who became inspired by this year's issues to register. Any action that impedes these newly registered voters is obviously intended to sway the outcome. If this effort is successful, then the results we report will not reflect the majority will of this state. The cause of freedom and democracy will suffer around the world if we cannot deliver a full and accurate count of all the votes cast by those who registered for this election.

In conclusion, the Ohio Democratic Party and Kerry-Edwards, 2004 respectfully request that the Board immediately convene and decide whether the mass, unsubstantiated challenges can go forward. I ask to be notified of any meeting or hearing on these challenges so that I can attend. For the reasons stated above, the Board should determine that the challenges should be dismissed in their entirety.

Very truly yours,

Richard R. Renner
Attorney at Law
Tate & Renner
505 N. Wooster Ave.
P.O. Box 8
Dover, OH 44622
330-364-9900
330-364-9901 (FAX)
Email: rrenner@igc.org
www.taterenner.com

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Last updated 2004-10-25