And the Winner of 2008's Most Partisan State Election Administrator Is...

By J. Gerald Hebert , Campaign Legal Center Blog. Posted November 1, 2008.

Back in 2004, Ohio Secretary of State Ken Blackwell distinguished himself as one of the most, if not the most, partisan state administrator of elections in modern times. He won that title the old fashion way: he earned it.

Working hard to advance a Republican agenda at every opportunity, he issued ruling after ruling that harmed the interests of Ohio Democrats. He issued these rulings as Secretary of State while also serving as the state chairman of the Bush-Cheney re-election committee, at the very least an appearance of conflict of interest. If anyone ever needed a clear example of why the chief elections officer of a state should not be a political operative seeking to advance the rights of one political party over another, Ohio’s Blackwell was exhibit A.

In 2008, Ohio's Blackwell has departed, but the Secretary of State from neighboring Indiana, Todd Rokita, appears headed toward a win in the 2008 Ken Blackwell most partisan elections administrator award. Let’s examine how Rokita got to be the odds on favorite to win this year’s award.

But first a little background. The organization ACORN has become this year's poster child for what the GOP claims is widespread voter fraud. Some have even claimed the group’s activities threaten our democracy, even though there is no proof that a single allegedly false or fictitious person has become registered to vote or cast a ballot. To my knowledge, Mickey Mouse has not become registered to vote in any state and if he does become registered, he is unlikely to show up -- even in Florida. And if he does become registered and does attempt to vote, he’s pretty recognizable. He doesn’t look like the rest of us.

ACORN and its defenders insist that any duplicative or fictitious voter registration applications are flagged by ACORN when they are turned in by their vendors/contractors and that they are identified as such by ACORN when they are submitted to election officials. ACORN also says that they have fired anyone who has been caught filling out fictitious applications. I have not seen anyone contradict either of these claims by ACORN.

The latest salvo launched against ACORN has come from Indiana Secretary of State Rokita. He sent a letter to federal, state and local prosecutors (and the FBI) calling for an investigation of ACORN. In his letter, Rokita says that the group has not just committed voter registration fraud, they have committed voter fraud on a large scale.

Voter fraud occurs when someone who is not eligible to vote casts a ballot. He offers no proof or evidence that any of the allegedly phony registration forms sent in by ACORN have resulted in those persons actually voting. So Rokita's claim that there has been widespread voter fraud (as distinguished from voter registration fraud by an ACORN canvasser who allegedly filled out fictitious forms) is simply not supported by any facts.

Secretary Rokita claims he wants the people of Indiana to have confidence in the election system. But he has a strange way of giving them confidence. He publicized his highly inflammatory letter to federal, state, and local prosecutors.

I find it problematic that Rokita chose to publicize his letter requesting an investigation. If you are genuinely concerned with giving voters confidence in the election system, you would not, one week before an election, issue a letter like this, saying:

"This is not simply registration fraud. This is voter fraud every bit as nefarious as the evidence each of our offices discovered in the 2003 election fraud investigation of former East Chicago Mayor Patrick’s campaign. Furthermore, this is not simply a local issue. This is a fraud perpetrated on all of the people of Indiana because fraudulent registrations are the first step in diluting the voice of honest voters and rendering an inaccurate tally on Election Day.” (footnote omitted).

The obvious answer is you don't issue press releases or letters proclaiming that statewide fraud is being perpetrated on all of the state's voters by the mere submission of suspect voter registration applications, which were identified by ACORN as suspicious when there were submitted and which ACORN was required by Indiana law to submit.

If a public statement is to be made at all, a non-partisan professional elections administrator gives the voting public assurances that their voting rights will be protected and that the integrity of the voter registration list is being safeguarded. And this is true even if there are examples of bogus voter registration applications.

If an election official has information suggesting that a crime has been committed, that person would normally write to prosecutors and make the request for an investigation. But it doesn't follow that you publicize the letter or its contents. You might do so if you feel that prosecutors will likely ignore your request and publicizing the request is the only way you can put public pressure on them. This is not the situation in Indiana.

Rokita's theory for alleging that ACORN violated state law is itself on shaky legal ground. First, Indiana Code 3-14-2-5(b) provides that a person who "fails to file or deliver to the proper officer a . . . form of registration after the . . . form has been executed commits a Class A misdemeanor." This law, which exists in a number of other states as well, is intended to guard against a group throwing away applications for persons that the group might not agree with. So ACORN would have been guilty of a crime under Indiana law if it had not submitted the forms.

The main provision of Indiana law that Rokita relies on to make his case against ACORN is Indiana Code 3-14-3-1.1. This provision makes it a Class D felony for a person to knowingly procure or submit "voter registration applications known by the person to be materially false, fictitious, or fraudulent.” There is no dispute to the fact that ACORN submitted voter registration applications that were questionable and further that ACORN itself flagged these applications for election officials. They did so to ensure that election officials would scrutinize those applications and make a determination whether the applications were, in the words of the Indian law, "false, fictitious, or fraudulent." It is the election officials who make this determination about suspicious applications.

ACORN, which is duty bound to submit all applications to election officials, can hardly be faulted for complying with the Indiana law that requires them to do so – even if the application is from "Mickey Mouse." And since ACORN itself flagged the registration forms and did not make a determination that the registration applications were fraudulent (leaving that to election officials), can it really be said the organization procured or submitted "voter registration applications known by the person to be materially false, fictitious, or fraudulent?" (emphasis added).

It seems to me that in a state where an organization is required under law (with criminal penalties for a violation) to submit all voter registration applications, it is violating neither provision of the Indiana code cited above by submitting all voter registration applications and calling attention to those that may be suspect so that "false, fictitious, or fraudulent" forms can be rejected by election officials who review them. In other words, ACORN's submission of all forms and separating out those that are suspicious would be the only way to comply with both provisions of the Indiana code.

At the end of the day, it seems to me that Rokita made his letter public to intentionally fan the ACORN fire and keep the voter fraud story alive. In other words, it was just a political stunt. Strangely, or perhaps not so strangely, it was akin to what the Bush White House did last week when it announced publicly that they were asking U.S. Attorney General Mukasey to see if ACORN in Ohio violated any federal laws.

So do we declare Rokita the winner of the 2008 Ken Blackwell award for most partisan secretary of state? He's got real competition from Alabama SOS Hunter and Georgia SOS Mandel, each of whom has gone out of their way to do whatever it takes to help their party and disadvantage Democrats. Perhaps it is still too early to declare a winner. After all, there are still several days before the election and sadly all of these hyper-partisan state election officials might still be outdone by a colleague, on either side of the aisle.

But I'm voting for Rokita, who had the lead going in. Only a year and a half ago, Rokita was asking forgiveness for a racially insensitive remark making "slave" and "master" references in describing voting trends among black voters. His latest stunt show's quite clearly that he"s not the even-handed, nonpartisan administrator of the state’s elections that Hoosier voters deserve.

              

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