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Mich. Foreclosure-Based Voter Challenge Ends in Political, not Legal, Agreement

Poll workers wait for voters during the 2008 Michigan primary election in Warren, Mich. (Reuters/Rebecca Cook)Democrats and the Obama campaign yesterday dropped their federal lawsuit charging Republicans with plotting an unconstitutional scheme to use home foreclosure listings to challenge the residency eligibility of certain Michigan voters. In exchange, the GOP agreed to join the Democrats in a public statement promising not to engage in foreclosure-based voter challenges.

The agreement, despite being signed by the parties’ attorneys, lacks any legal force. But two weeks from Election Day – in a state the McCain campaign, since the filing of the suit, had officially abandoned – Democrats appeared to prefer a sure political statement to continuing an uphill legal battle. 

The joint statement says, “All parties . . . agree that the existence of a person’s address on a foreclosure list does not provide a reasonable basis for challenging the person’s eligibility to vote and that none of these parties will challenge any voter’s eligibility on that basis.”

As ProPublica previously reported, the case arose when a widely circulated September 10 news article by the Michigan Messenger quoted a county-level GOP leader as saying, “We will have a list of foreclosed homes and will make sure people aren’t voting from those addresses.” The official denied saying these words, and the GOP denied having a foreclosure-based challenge plan.

But the Democrats refused to take their word – head Obama lawyer, Bob Bauer, at the time said the Republicans could “tell it to the judge” – and sought a court order prohibiting foreclosure-based challenges. Because foreclosure status often doesn’t change a person’s residency for voting purposes, they argued, any plan to question the eligibility of those living at troubled properties would subject too many qualified voters to baseless scrutiny.

The Democrats’ decision yesterday looked like taking Republicans at their word. But Michigan attorney Mary Ellen Gurewitz, who represents the Democrats in this case, told ProPublica that the plaintiffs viewed as a key change the filing of sworn declarations by GOP figures that they would not challenge voters on the basis of foreclosure notices.

The seriousness of those litigation responses belied the claim of Michigan GOP spokesman Bill Nowling yesterday, that Democrats’ dropping the case proved the lawsuit was “frivolous.” That is a strong word in courtroom terms, suggesting someone has pressed a case despite knowing it has no good purpose and no basis in law or fact. A frivolous case is not the same as one that is hard to prove. The law requires plaintiffs to show substantial evidence they’d be hurt to win a case like the one filed in Michigan. But, Loyola election law professor Richard Hasen recently explained, it’s unknown whether past fears of alleged Republican voter-challenge plans were imagined or foiled by the filing of high-profile – if uphill – litigation by Democrats.

The main objective of the lawsuit, lawyer Gurewitz said, had been to assure any hesitant, would-be voters that they needn’t fear being “embarrassed” at the polls by challenges raising the foreclosure status of their homes. Even though foreclosure status often doesn’t mean a person lacks residency for voting purposes, under Michigan law – as in numerous states – voters have considerable leeway to challenge people’s eligibility and subject them to vetting procedures.

Attorneys for the GOP defendants did not respond to ProPublica’s calls and emails asking whether yesterday’s joint statement meant that Republicans in other states have also pledged not to use foreclosure lists to challenge voters’ eligibility. The defendants in the case include only the Michigan Republican Party, its Macomb County chapter, and the Republican National Committee.

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