Reading Between the Extremes of Obama Campaign v. Michigan GOP

Outrage over a news story that reported a seemingly heartless plan by Michigan Republicans to use home-foreclosure lists to challenge the residency status of voters escalated last week into the first hot-button lawsuit of the election. Accusations got ugly. American Lawyer suggested it could be this election's Florida 2000 or Ohio 2004.

The political stakes crystallized this week, when several polls showed Democrat Barack Obama to have increased his lead over Republican John McCain in the state. Barely blue, racially fraught and blessed with one of the highest shares of Electoral College votes among the battleground states, Michigan has moved center stage in this election.

More remains to be discovered about voting this year in Michigan. But the key state has already kicked off a debate that will run through likely many Election '08 lawsuits to come. Assuming that no state can perfectly sort all qualified voters from the unqualified, which is the way to err: admit too many or too few?

The tumult began Sept. 10, when the Michigan Messenger, a news site that describes its writers as "progressive," reported that GOP strategists were planning to use home foreclosure lists to try to disqualify would-be voters by alleging they no longer live in the area where they're registered. It quoted Macomb County Republican Party chair James Carabelli as saying, in a telephone interview, "We will have a list of foreclosed homes and will make sure people aren't voting from those addresses."

That news blazed across the Web, from lefty blogs to Gawker to CBSNews.com and eventually to the dailies. Last Tuesday the Obama campaign filed a federal class action on behalf of all foreclosure-affected voters in Michigan, accusing the Republican Party at county, state and national levels of a "systematic attempt" to interfere with the right of financially strapped people to vote. Macomb County residents Duane Maletski, Sharon Lopez and Frances Zick joined the campaign and the national Democratic Party in asking the court to block this "scheme (PDF)."

Chief Obama lawyer Bob Bauer called the purported plan "a new and especially repellant version" of a practice known as vote caging. Caging involves gathering evidence -- usually in the form of returned mail -- to suggest that people don't actually live where state records list them. As Slate's Dahlia Lithwick has noted, caging has been denounced as a vote suppression technique targeted at low-income and minority communities.

The defendants struck back, although mainly at the original source for the allegations. The Michigan GOP issued several statements denouncing the Messenger's report as "false," "reckless and fabricated" and "a story line being pushed by one liberal blog, the Obama campaign, and their friends and operatives on the Left."

In a telephone interview with ProPublica this week Carabelli denied saying "the things that they printed in the Michigan Messenger. I've talked to hundreds of radio and TV reporters before, and I've never been misquoted like this."

In words that read like a wisecrack but sounded quite earnest, he continued, "I'm really feeling a little disenfranchised at this moment." Challenging voters using foreclosure lists, he said, "is not reflective of who we are down here." He apologized for not being able to speak further on the record, on the advice of his attorney.

Carabelli has demanded a retraction (PDF) of the Messenger and its parent organization, the Center for Independent Media. The demand letter, dated the day after the voters' suit was filed, singles out as defamatory two sentences of the more than 1,000-word story that describe Carabelli's comments about foreclosure-based challenges. The Messenger posted a statement explaining its rejection of the demand.

Another Republican leader named in the story, Douglas Preisse of Ohio, demanded and got something of a retraction. The Messenger originally had written that Preisse "has not ruled out challenging voters...due to foreclosure-related address issues." Preisse later insisted (PDF) that the voter challenges he was talking about were not related to foreclosures. The Messenger has since acknowledged that "he did not specifically address the issue of foreclosed homeowners."

Republicans aren't denying that they are planning some kind of organized effort to challenge certain voters' qualifications to cast a ballot. Although it would now seem impolitic of them to use foreclosure lists, it is not clearly illegal. The New York Times reports today that some election officials are worried such challenges will happen and increase confusion at already crowded polling sites.

Challenging voters' qualifications can be perfectly legal, and in Michigan it's unusually easy. Any registered voter in a precinct is allowed to "challenge the right of anyone attempting to vote if the elector...has good reason to suspect that individual is not a registered elector in that precinct." In contrast, some states permit challenges only by pre-designated individuals, and some require accusers to swear to their reasons in an affidavit.

A Q&A (PDF) produced by Michigan's top elections administrator, Secretary of State Terri Lynn Land -- a self-described "longtime Republican activist" and the state's co-chair for Bush-Cheney '04 -- lists a range of "good reasons" for making a challenge. Merely overhearing a statement that suggests a problem involving age, residency or registration or citizenship status may be reason enough for a bystander to make a challenge. More commonly, the state explains, "such challenges are based on research conducted in advance of the election by the challenger or the organization the challenger represents."

Challenging "for the purpose of annoying or delaying voters" in Michigan is punishable as a misdemeanor. But it's not hard to imagine how, under the state's rather broad guidelines, "annoying" in the normal sense could be excused as legally "good."

The procedure Secretary Land describes for handling challenges, good or bad, requires challenged voters to step aside and take the following oath: "I swear (or affirm) that I will truly answer all questions put to me concerning my qualifications as a voter." Then they must submit to questioning, conceivably surrounded by neighbors or irritated strangers. The state explains that a "challenged voter may not vote if he or she refuses to take the oath" or "refuses to answer appropriate questions under oath." The law itself may be more complex, but that's what the state's Web site says.

ProPublica had a number of questions for Secretary Land about how she'd administer the challenge process in November and about whether Michigan has ever prosecuted anyone for bad-faith voter challenges. Spokesperson Kelly Chesney did not respond to two phone messages and a detailed e-mail. The McCain campaign's Great Lakes regional representative, Sarah Lenti, also did not return calls or e-mails. ProPublica is eager to hear about any plan, Republican or Democratic, to challenge voters' qualifications.

Richard Hasen -- one of perhaps two election law experts on the planet unaffiliated with either campaign -- blogged last week, for the sake of argument, that the Obama lawsuit could be just a disingenuous ploy to stir Michigan's traditionally Democratic blue-collar passions. This week's polls, putting Obama ahead, were conducted during the outcry over the reported plan to challenge struggling homeowners' right to vote. Quinnipiac University pollster Peter Brown said that Obama's "lead among those who see the economy as the most important issue has almost doubled" since July.

Hasen doubts the Michigan plaintiffs can meet the high bar to win a court order condemning the GOP defendants, if the Messenger's reporting is their only proof. Obama's campaign did not respond to an e-mail asking about further evidence. Still, Hasen said in a talk with ProPublica, "To the extent it's being done to protect voters, it's a good idea."

Individuals are unlikely to lodge voter challenges on their own, Hasen said, without an organized effort behind them. In recent elections, including Ohio in 2004, Democrats have gone to court protesting that the Republican Party was plotting to challenge and unconstitutionally disenfranchise voters in the tens of thousands. "And then no challenges appeared," said Hasen. The plots may never have existed, he said. Or they may have been foiled by the filing of high-profile litigation.

Liberal muckrakers have documented how past Republican voter-vetting efforts have targeted low-income people of color, who tend to be Democrats. Republicans resent the implication, saying, as the McCain campaign has put it, that they are motivated by "zero tolerance for fraud."

Their biggest court case right now is in Ohio, another critical swing state, where they're trying to block implementation of a new law that allows people to register and vote on the same day -- a permissiveness that Republicans warn is a recipe for voter fraud.

Days after the Messenger story painted them as vote suppressors, Michigan Republicans accused Democrats of perpetrating fraud. The state GOP announced that "the national Left-leaning...group ACORN [Association of Community Organizations for Reform Now] is flooding local clerks offices with duplicate and fraudulent voter registration applications."

ACORN acknowledged to ProPublica that its registration drive, which in Michigan has signed up some 210,000 mostly low-income, urban voters, has produced some fraudulent applications. Michael Slater, executive director of Project Vote, which supervises "quality control" and legal issues for ACORN's drive, attributed problems to two basic causes: voter confusion and occasional bad employees.

He said, for example, that voters may not understand that they should register only once if they haven't moved. Some sign up again, thinking it couldn't hurt to be sure, so they generate seemingly suspect "duplicate" forms. Organizations can't catch these because they don't have access to states' registered-voters databases.

Despite some elaborate quality-control measures Slater described, he said some mistakes slip by. He also said that, out of some 1,000 canvassers nationwide, who are paid $10 or less per hour, some will turn out to be cheaters. He could not provide an error rate, but he said ACORN was cooperating with law enforcement investigations of certain canvassers in six states. His list did not include Michigan.

Secretary Land's office did not respond to ProPublica's queries about how the state is addressing suspected registration fraud. Spokesperson Chesney told the Detroit Free Press, "There appears to be a sizeable number of duplicate and fraudulent applications. And it appears to be widespread."

ACORN's Michigan director David Lagstein told ProPublica that ACORN itself flagged most of the registration flaws in Michigan. He said the group's policy is to hand in even questionable applications, leaving it to election officials to determine their validity. (ProPublica is committed to "entirely non-partisan and non-ideological" reporting, but skeptics can read a Times piece, here, that notes that ACORN has been supported by ProPublica's funders.)

Last Monday Obama lawyer Bauer foreshadowed the next day's lawsuit with a somewhat philosophical blog post: "Is all pre-election litigation over voting rights or election administrative matters the same?" After filing the case, he answered his own question. Lawsuits seeking to protect voters are categorically better than those that would screen some out, he said.

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