In Florida, 26.7 percent fewer new voters have registered this year than in 2006. (ZUMA Press)

After more than a decade of success expanding voter rolls, voting rights advocates are noting a disturbing trend in the run-up to the 2010 elections. Dramatically fewer groups are engaged in registering voters during the current election cycle than in previous midterm elections, and fewer voters, especially in poorer areas that are traditionally underrepresented and therefore the usual target of voter registration drives, are registering to vote as a result.

[Congress1] Registration patterns vary significantly from state to state, but 26.7 percent fewer new voters have registered in Florida this year than in 2006, along with 21.4 percent fewer in Maryland and 16.9 percent fewer in Tennessee, according to the Brennan Center for Justice, a public policy and law institute at New York University. And while there’s no single cause for the decline, experts point out that many independent organizations are withering under a combination of public attacks by conservative activists alleging voter fraud and new state laws making it difficult for such groups to operate.

“A four-year wave of attacks on voter registration drives, both in terms of state laws that either shut down voter registration drives or made it too onerous to do it, and other public attacks have certainly had an effect,” said Wendy Weiser, director of the Brennan Center’s Voting Rights and Elections Project.

And while voter registration drives have languished, state governments aren’t picking up the slack. Voting rights advocates argue that many states aren’t adequately complying with requirements in the National Voter Registration Act of 1993 to register voters automatically at state agencies and keep their addresses up to date when they move. The result is a gaping hole in the country’s voter registration efforts that threatens to undo the positive strides that have been made over the last decade and a half.

The most obvious cause for the decline in voter registration is the shuttering of the Association of Community Organizations for Reform Now, or ACORN. At its height, ACORN had a budget of close to $35 million and was credited with registering approximately half a million voters in 2008 alone. Amid allegations from conservative activists that the group engaged in widespread voter fraud, Congress voted last fall to defund ACORN, which received approximately a third of its budget in the form of government grants. The rest of the group’s funding soon dried up, and ACORN was forced to cease operations at its approximately 75 field offices soon thereafter.

But rather than rest on the laurels of their victory against ACORN, conservative activists have been emboldened to seek out new organizations engaging in voter registration drives and levy similar accusations against them, creating an increasingly hostile landscape for them to perform their mission.

“I wouldn’t underestimate the public attacks,” says Weiser. “It’s not a law prohibiting you, so it’s a little harder to demonstrate, but the chilling effects have nonetheless been palpable. People are nervous to do drives and support groups that do this kind of work.”

Tea Party groups, revved up by accusations made against ACORN in 2008, have worked to challenge voter registration drives and contest votes on election day in a number of states, including California, Wisconsin and New Mexico. But the clearest example of attacks launched against new groups seeking to register voters occurred in Harris County, Texas, where True The Vote, which is affiliated with the Tea Party group the King Street Patriots, dug through the county’s registrations and accused a voter registration organization called Houston Votes of engaging in widespread voter fraud in August.

The controversy centered on a number of voter registration forms filed by Houston Votes that were rejected because they were linked to vacant lots and people that did not exist. Many of these registrations, Houston Votes argues, had been made in 2008 and 2009 — before the group was founded and when many of the lots still had homes on them. But the damage had been done. King Street Patriots’ leader Catherine Engelbrecht allegedly referred to Houston Votes as the “New Black Panthers’ office”; Houston Votes responded by filing suit for defamation.

“When someone says you’re associated with racists that are trying to kill all white people, then it has a chilling effect on donors willing to give to your organization, which has an effect on the amount of work you can do. That’s pretty simple-minded stuff,” said Jim George, the lawyer representing Houston Votes. In recent months, the group has been forced to slow its activities to registering just 200 votes a day, down from over a 1,000 before the allegations were leveled.

But Tea Party groups pose only part of the problem for organizations hoping to launch voter registration efforts. While the National Voter Registration Act of 1993 requires states to make blank mail-in voter registration forms available to organized voter registration programs, many state legislatures, especially since the fear of widespread voter fraud began to rise among conservatives in 2004, have countered with various laws that place burdens on groups hoping to carry out that function.

These new laws, detailed in a report by the Brennan Center, range from enacting stricter-than-usual reporting and filing deadlines for voter registration groups to shifting the cost of providing registration forms onto the groups themselves. In addition, many states have imposed stiff civil and criminal penalties on groups whose members are late or fail to comply with reporting, making engagement in the process overly burdensome or risky for small organizations.

The Republican-controlled state legislature in Florida, for instance, enacted a law so onerous that its constitutionality was successfully challenged in court in 2006 by the League of Women Voters of Florida. The legislature passed a new law in response, however, which a number of groups in Florida point to as the reason why registration efforts in their state are down more than 26 percent from 2006.

“The direct reason this year in particular is because of new legislation signed into law by the Republican state legislature that puts as many obstacles in place as possible as far as third parties hoping to register people to vote,” says Ron Mills, an area leader for the Broward County Democratic Party. “There are all these obstacles and reporting you have to do as if you are a campaign, even though you are a volunteer organization with few professional staff. … It’s got to where even the local Democratic executive committee in Broward County decided they didn’t want to go through the trouble, so we’re not qualified to register voters.”

New voter identification laws, too, are placing burdens on citizens’ ability to register to vote. Arizona, for instance, requires people to supply proof of citizenship to register to vote, and from 2004 to 2008, according to a report from Demos, the liberal public policy research organization, over 38,000 registrations were rejected as a result — despite court documents that indicated 90 percent were from residents born in the United States.

And the states, the Demos report also notes, are not filling in where outside voter drive efforts have fallen off. Many of them are failing to comply with the provisions in the NVRA that require them to keep up with voters’ address changes, which represent approximately a third of all registration activities in a given election cycle.

“If people move — and every four-year cycle it’s approximately 40 percent of the population in total who do so (and it’s more with poor populations) — one of the things that we found doing an investigation about states not complying with NVRA obligations is that they’re not updating registration addresses,” said the Brennan Center’s Weiser. “There was a huge increase in registration in 2008, and we worry with all the foreclosures and moving that a lot of folks on the voter rolls won’t be accurately reflected and might face problems when they try to vote.”

In the long run, a top-notch state voter registration system that complies with the NVRA and automates registration at public assistance agencies, schools and DMVs should be responsible for voter registration. In the meantime, said Weiser, “voter registration drives are the activities that fill that gap so they certainly perform a really needed function. Right now, there’s a very big hole out there.”

According to MPI, of an estimated 12 million lawful permanent residents in the United States, 4.2 million are uninsured and more than 1 million would be excluded from Medicaid coverage or insurance subsidies if Congress doesn’t remove the current five-year waiting period for eligibility, which current proposals do not do. Legal immigrants would still be required to purchase coverage, though, putting them at a significant disadvantage compared to the rest of the legal population.

“Leaving large numbers of legal immigrants out of health care reform would defeat the core goal of the legislation, which is to extend coverage to the nation’s 46 million uninsured,” said MPI Senior Vice President Michael Fix in a statement released with the report today.

The report also criticizes the proposals for stringent eligibility screening, which is often costly and badly designed, and keeps eligible U.S. citizens from getting access to medical coverage if they can’t prove their citizenship. The Brennan Center for Justice found that in 2006, 21 million U.S. citizens lacked valid identity documents necessary to prove their citizenship.

“Both the Bush and Obama administrations have previously relied upon the state secrets privilege to block litigation challenging policies ranging from warrantless wiretapping to extraordinary rendition, and our organizations welcome the new policy as an important first step in bringing much needed reform to the use of this doctrine,” the letter said.

However, the new policy does not address all the problems, the organizations wrote. “To ensure proper oversight and an independent check on executive discretion, judges must be able to review the evidence, order the creation of non-privileged substitutes where appropriate, and assess whether there is sufficient non-privileged evidence to enable a case to proceed,” the letter said. “Legislation is necessary to implement these key reforms.”

The seven organizations who signed onto the letter are the American Civil Liberties Union’s Washington Legislative Office, the Brennan Center for Justice, the Center for Democracy and Technology, the Constitution Project, Human Rights First, the National Security Archive, and OMB Watch.

The legislation they’re supporting has been introduced in the Senate as the State Secrets Protection Act: S. 417, sponsored by Senator Patrick Leahy (D-Vt.), and in the House as H.R. 984, sponsored by Representative Jerrold Nadler (D-N.Y.).

But are the statements signed by Obama really the same as those signed by Bush?

Not surprisingly, longtime Democratic administration lawyers don’t think so. Walter Dellinger, for example, who promoted the use of signing statements in the Clinton administration, says the difference is that Obama’s signing statements are based on sound interpretations of constitutional law.

Signing statements “long have been used to signal the President’s belief that some aspect of a piece of legislation is unconstitutional,” Dellinger wrote in a 2006 response to the ABA, along with former Clinton officials David Barron and Martin Lederman, both now in the Obama administration’s Office of Legal Counsel. The problem with Bush’s signing statements were not that they expressed constitutional reservations about laws passed by Congress, but that they reflected “the unjustifiable arrogation of power” that Bush asserted in office.

Given the officials that populated the Office of Legal Counsel in the Bush years, it’s not surprising that his signing statements may have crossed the line from legitimate reservations to unauthorized power grabs. Obama, who so far hasn’t argued for a “Unitary Executive” or other theories of far-reaching executive power, seems to be issuing statements that at least on their face comport with generally accepted understandings of the law.

Still, his first signing statement, limiting executive officials’ communications to Congress, illustrates the potential problem. In signing the bill, which prohibits executive officials from preventing or punishing government employees’ communications to Congress, Obama added: “I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.”

The Brennan Center for Justice at New York University called that “a strike against transparency.” Noting that the law was written to protect government employees who blow the whistle on government misconduct, “allowing the heads of executive branch to ‘control’ the employees’ communications defeats the very purpose of the communications,” and thwarts Congress’ ability to exercise effective oversight. Moreover, notes the Brennan Center, the signing statement could have a chilling effect against potential whistleblowers, leaving them open to retaliation whenever the agency decides that the information revealed was “confidential.”

So Obama’s signing statements might not be unlawful, but at least some of them are politically questionable. Then again, they’re not really all that surprising. As Andrew Cohen of CBS News put it back in March when Obama issued his first of many such statements: “If you were hoping that the Obama team would come into the White House and aggressively undercut its own power it’s time to change dreams.”

Illustration by Matt Mahurin

You know it’s going to be a heated election when a state attorney general sues his own state agency for not cracking down on voter fraud. But that’s just what’s happened in Wisconsin. It’s indicative of the kinds of legal challenges now being brought in hotly contested states around the country. The outcomes of those challenges will decide whose votes get counted and whose don’t — and in a race as close as this one, that could make all the difference.

In each case, Republicans claim voter fraud is rampant and the government has to crack down on it. Democrats, meanwhile, argue it’s rare – and far less of a problem than intimidation and harassment of voters at the polls.

Illustration by: Matt Mahurin

In Wisconsin, Atty. Gen. J.B. Van Hollen – a Republican and the state co-chair of Sen. John McCain’s presidential campaign — has sued the state’s Government Accountability Board, a non-partisan group of former state judges responsible for implementing the election laws. Van Hollen insists that the board’s failure to require that the identifying information which voters used to register matches the information contained in a new statewide voter database is a violation of the federal Help America Vote Act (HAVA) of 2002.

“The statewide computerized voter registration list required by HAVA includes thousands, if not tens of thousands, of names whose information has not been verified through the HAVA checks mandated by Congress and required by state law,” Van Hollen said when he filed the case. “Unless action is taken by the Wisconsin Government Accountability Board, these names will remain on the list during the Nov. 4, 2008 presidential election and there is a significant risk, if not a certainty, that unlawful votes will be cast and counted.”

The federal law requires states to create a computerized statewide voter registration list that contains the name and identifying information of every legally registered voter. It does not, however, require that information on already-registered voters match the information in the new database.

For good reason. Personal data often doesn’t match — not due to any voter fraud, but because voters used a married or hyphenated name or nickname; or because of typographical errors by state workers entering the information into the database.

As a result, the handful of states that have mandated matching have found themselves facing a logistical nightmare. In Washington state, between 16 percent and 30 percent of registered voters in each county did not match the state database. In Florida, some 20,000 voters were denied or delayed in voting on that basis in 2006. Both ended up getting sued for making the match mandatory and so disenfranchising tens of thousands of voters.

In Wisconsin, after 22 percent of voters’ registration information did not match the state’s database – including data on three of the six judges on the accountability board — the board decided that trying to match everyone to the database by November would be impossible. The database wasn’t even completed until Aug. 1.

“To immediately require that every voter registered since January 2006 be matched against the state database,” Kevin Kennedy, the board’s director and general counsel wrote to Van Hollen in August, “could lead to mass confusion at the polls.”

Van Hollen has continued to pursue the suit, however, insisting it’s necessary to prevent voter fraud. “When unlawful votes are cast and counted,” he said when he filed the case, “the power of a lawful vote is diminished.”

THE EXTENT OF FRAUD

But voting experts say voter fraud of this type is extremely rare. “It is more likely that an individual will be struck by lightning than that he will impersonate another voter at the polls,” the Brennan Center for Justice concluded, after conducting a comprehensive study last year.

Meanwhile, the Brennan Center’s studies show that rules like the one Wisconsin’s attorney general is advocating disenfranchise thousands of people – most often the poor, elderly and minorities.

In Florida, for example, where the Brennan Center sued the state on behalf of the state’s NAACP, studies showed that black voters made up 13 percent of all registration applicants, but were 26 percent of all matching problems. Similarly, Latinos were 15 percent of the total voting population, and 39 percent of those blocked; while white voters were 66 percent of the voter applicant pool, but only 17 percent of those whose applications didn’t match.

“The law inevitably leads to higher and heavier burdens being placed on less affluent voters and voters of color,” said Adam Skaggs, counsel for the Brennan Center. “So more of those voters will have their votes not counted in November. And as we saw in 2000, it can take only a couple hundred voters to make the difference in the election.”

That is, of course, why both Republicans and Democrats are fighting so hard now over who gets to vote. In addition to Wisconsin and Florida, there are lawsuits pending in Michigan and Ohio. A suit against Washington state, which had required HAVA matching, was settled earlier this year.

In Wisconsin, “We’ve always tried to make sure that voting was a right and shouldn’t be too hard,” said Joe Wineke, chairman of the Wisconsin Democratic Party. “Republicans are hell-bent on making sure if they can challenge it, they will. Because the higher the turnout, the better the Democrats do.”

Republicans claim Democrats are in denial.

“I refer to this very well-funded adamant organized effort in America as ‘the professional vote fraud deniers industry,’ ” said Cleta Mitchell, an election lawyer who chairs the Republican National Lawyers Assn. “If you just deny it, then that means that anyone who wants to take any steps to protect the integrity of the process can only be doing that because they’re a racist.”

The problem, Mitchell says, is that the National Voter Registration Act of 1993 – known as the motor-voter law – led to huge numbers of registrations. But state officials did not remove people from their rolls when they moved or were otherwise no longer eligible.

“So you literally have jurisdictions in this country where you have more registrations than you have people eligible to vote,” said Mitchell. “People would register more than once. It mightily burdened the elections administration resources.”

Such registration problems don’t mean people are committing voter fraud, however. Experts point out that even if someone moves and registers to vote at their new address without canceling their old registration, there’s no evidence that they actually vote twice.

It’s a point the Supreme Court acknowledged in April, even as it upheld Indiana’s controversial voter identification requirement. “Indiana’s voter registration rolls include a large number of names of persons who are either deceased or no longer live in Indiana,” wrote Justice John Paul Stevens for the majority in Crawford v. Marion County.

Still, there was no evidence that someone was trying to vote on their behalf. “The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history,” Stevens wrote, noting that to do so would be a felony. In fact, to find an example of widespread voter impersonation the court had to reach back to the New York City elections of 1868, in which William (Boss) Tweed sent “repeaters” to vote in different names.

The first case brought by the new Election Fraud Task Force formed by Wisconsin’s attorney general and Milwaukee district attorney, filed Tuesday, actually supports the argument that voter fraud is a red herring. The criminal complaint accuses a city worker of submitting 27 voter registration forms containing false information, including 19 addresses that do not exist. Even if the charges are substantiated, however, unless the 19 people with nonexistent addresses actually show up to vote, such fraud wouldn’t have any impact on the outcome of the election.

“Voter fraud is a huge canard,” said Robert Atkins, a partner at Paul Weiss Rifkind & Garrison who is working with the Brennan Center on the case against Florida. “There’s a long history of systemic attempts to rip off elections. There’s no evidence to support individual efforts of voter fraud. It’s a sham.”

Indeed, until 2007, the Justice Dept. policy was not even to investigate claims of individual voter fraud, on the grounds that it has “only a minimal impact on the integrity of the voting process.”

That policy was changed by the Bush administration to allow prosecution of individuals at the prosecutor’s discretion. Congressional hearings later revealed that some of the U.S. attorneys fired under Atty. Gen. Alberto Gonzales were targeted due to their failure to prosecute claims of voter fraud urged by Republicans in their districts.

THE SITUATION IN FLORIDA

In Florida, after fighting the NAACP and others in federal court, state officials agreed to slightly amend its law requiring voter matches.

“Instead of having to start a new registration, now corrections can be made on that existing application up to Election Day,” said Jennifer Davis, spokeswoman for Florida’s secretary of state. “If they still haven’t resolved the issues, they can vote a provisional ballot on Election Day, and they can provide a copy of the relevant ID by mail or in person or by fax the next day.”

There is reason to be skeptical, however. In 2000, according to a Palm Beach Post analysis, Florida wrongly purged about 1,100 people from the voting rolls who were misidentified as state felons. Proof of their eligibility to vote came too late for their votes to be counted. George W. Bush ended up winning Florida, and the presidency, by a mere 537 more votes than Democrat Al Gore.

Even assuming that Florida officials will fairly enforce the new law, “some people don’t have easy access to a fax machine, or have work or family commitments,” said Skaggs of the Brennan Center. And because Florida just started implementing this new rule in September, he worries that thousands of newly registered voters won’t get the right directions of what to do, because there’s so little time to train poll workers.

“There will be many voters that just don’t understand,” said Skaggs, “They will show their license, will be given a ballot and mark it, and will not know they need to do anything more. Many voters just won’t understand they have to do something else to verify it.”

In Wisconsin, the judge on Wednesday ruled that the lawsuit to require a similar matching requirement there can proceed, even though the attorney general suing the elections board is also defending the board in three other lawsuits.

Democrats are concerned. “Based on what we saw in Florida in 2000, and Ohio in 2004, we expect Republicans to spend a lot of time in highly Democratic precincts and use the HAVA test to challenge voters,” said Wineke. “Every time there’s a challenge, it slows the train down. All the people standing in line behind this individual are going to stand in line even longer. And not everybody can stand in line three or four hours to vote.”

“It’s not that we want to have people vote that shouldn’t be voting,” Wineke continued. “We just don’t want people who are eligible to vote unable to vote because of partisan mischief.”