Republicans Abuse Prosecutorial Powers to Intimidate Voters
(Editor's note: This story was published late Thursday, before the Obama campaign counsel Bob Bauer addressed many of these same issues in a media conference call on Friday.)
As the presidential election comes to a close, the Republican Party -- and its allies in law enforcement at the FBI and at county levels in Ohio -- are announcing voting-related prosecutions that civil rights advocates say are intended to intimidate voters, despite prosecutorial rules that bar these disclosures before an election.
The foremost example was Thursday's leak to the media by top FBI officials of a new investigation of ACORN, a low-income advocacy group which registered 1.3 million new voters in swing states in 2008. The Associated Press reported "senior officials" confirmed the FBI investigation, saying they "spoke on condition of anonymity because Justice Department regulations forbid discussing ongoing investigations particularly so close to an election."
"The reports by unnamed sources within the FBI that they have begun an investigation of ACORN is patently inconsistent with the DOJ prosecution manual," said Gerry Hebert, a former Justice Department Voting Section Chief who now runs the Campaign Legal Center in Washington.
"Whether they are prosecuting or not, it is clearly intimidation," said Jeff Gamso, legal director of the American Civil Liberties Union (ACLU) of Ohio. "That is what press reports do. You intimidate people into not going to the polls and not voting."
The FBI leak has counterparts at the county level in Ohio, raising the same voter intimidation concerns.
In Columbus, Franklin County Prosecuting Attorney Ron O'Brien, a Republican, confirmed in numerous state media reports on Wednesday that he was investigating a group called Vote From Home, which registered more than 11,000 new voters from inner-city neighborhoods. A Franklin County Board of Elections spokesman said it learned about the group from a college website and found some of its members had registered and already voted in Ohio.
"The story indicated that these people were out of state Democratic Party activists who moved into Columbus to work temporarily and they listed this Columbus address as their residence to vote," said Ben Piscitelli, the BOE spokesman. "Under state law, you have to be a resident in the state 30 days prior to the election. The residence has to be a place to which you plan to return."
Piscitelli said it did not appear the group's members, who include students from the nation's top law schools, could meet the ongoing residency requirement. "We referred this to the Franklin County prosecutor to see what is illegal about this," he said. "As we explained to local reporters, there is nothing inherently illegal about having 13 people register at a single address."
"Vote From Home's great crime is they helped 11,000 people register to vote and helped people get absentee ballots," said Robert Fitrakis, a Columbus election lawyer. "All this was leaked to the press, to FOX news, to TV-6, which is Sinclair Broadcasting, which is more conservative than Fox News ... They are trying to put a chilling effect on voting. They are trying to scare people into not voting by using criminal prosecutions."
Franklin County Prosecuting Attorney Ron O'Brien did not return requests to comment.
The FBI leak and Franklin County investigation are not the only examples of publicized legal tactics in Ohio that civil rights lawyers say are intended to scare new voters.
In recent weeks, the Ohio Republican Party and Democratic secretary of State have been at odds in federal court over whether Social Security and state motor vehicle records can be used to verify or reject more than 200,000 voter registrations -- equal to a third of the state's new voters in 2008. On Wednesday, the day the secretary of state appealed a federal court ruling to the U.S. Supreme Court, an Ohio Republican Party spokesman said the GOP did not intend to use these database records to challenge voter registrations -- an assertion that left some Democrats saying the Republicans had embarked on a "chaos" campaign to confuse the public.
At the same time as the Ohio Republican Party was disavowing using any "no-match" data to challenge new voters, it also asked the state's 88 county election boards for voter registration information on all new voters, including people who registered and then voted during a week-long window in early October.
"The Ohio Republican party ought to stop harassing innocent voters," Carrie Davis, a staff attorney with the ACLU of Ohio said in a statement Thursday, looking at the party's tactics. "The party is continuing to imply wrongdoing by undertaking a sweeping investigation of legitimate voters for simply having the nerve to lawfully cast a ballot."
Earlier this month, a coalition of national civil rights groups sent a letter to the Greene County Prosecutor Stephen Haller and Greene County Sheriff Gene Fischer that made the same election records request as the Ohio Republican Party -- seeking lists of newly registered and early voters. Their coalition's letter said the Greene County officials' planned investigation of legal voters would violate voter intimidation sections in the federal Voting Rights Act and National Voter Registration Act. Haller subsequently ended his investigation, however that state party has continued to seek the same voter records.
On Thursday another Ohio election lawyer who asked not be named said had he heard that prosecutors in Delaware County, a Columbus suburb, and Hamilton County, where Cincinnati is located, also were considering voter registration cases before the November election. Spokespeople for both prosecutors said they could not comment on future or pending investigations.
(Editor's note: On Sunday, the Cincinnati Enquirer reported that Hamilton County prosecutor and McCain Campaign Southwest Ohio chair, Joe Deters, issued subpeonas for "personal information" of 40 percent of the 641 voters who registered and then voted in a week-long window before 2008 voter registration closed.)
"What we are seeing is a political party is going to partisan county prosecutors to look into election law issues, completely bypassing the bipartisan county boards of elections," the attorney said. "Ideally, the way the process would work is the bipartisan election board takes a look at the information."
John McClelland, Ohio Republican Party spokesman, said his party was not encouraging Republican county prosecutors to pursue voting rights cases before the election.
"I believe if you talk to the Franklin County prosecutor, he will tell you that it (the Vote From Home referral) was sent to him by the bipartisan county board of election," McClelland said. "It sounds like you are talking to Democrats. I would ask that the spokespeople you are speaking to check their facts."
McClelland did not respond to a follow-up e-mail asking how the Ohio GOP intended to use the data it was collecting on newly registered voters and early voting. The party asked Ohio's county election boards to produce those records by Thursday.
At the Franklin County board, spokesman Ben Piscitelli said it was not the BOE's role to work out issues concerning Vote From Home's voter registration and residency issues.
"Why would we do that?" he said. "It is our job to facilitate elections. We did verify registrations. We have more than 800,000 people registered to vote. You have no idea how busy we are ... We have no political agenda here."
But the Ohio ACLU's Gamso said these actions were not as innocent as McClelland or Piscitelli suggest.
"What this is all about is keeping people from going to the polls at all," he said. "It is designed to keep people from voting. It is too late to keep people from registering. Voter registration is closed. But what you can do is set up a system where if they try to go to the polls they will be harassed, or create an expectation that will happen. That is the point."