Citizenship checkbox unlawful, argues voting rights coalition

from ACLU of Michigan

In a lawsuit filed Tuesday in federal court, a voting rights coalition is challenging Secretary of State Ruth Johnson’s controversial “citizenship checkbox” as unconstitutional and a violation of federal and state law.

“The Secretary of State may be the chief election officer in the state, but she is not above the law,” said Kary L. Moss, American Civil Liberties Union of Michigan executive director. “By ignoring the administrative rulemaking and legislative processes, she has thumbed her nose at the electorate and flouted the very laws she was elected to uphold. We can all agree that it should be easier to vote and harder to cheat, but cynical voter suppression tactics should not be tolerated.”

In addition to the ACLU of Michigan, the voting rights coalition filing today’s lawsuit includes the Service Employees International Union (SEIU), Latin Americans for Social and Economic Development (LA SED), Ingham County Clerk Michael Bryanton, and registered voters from East Lansing, Shelby Township, and Buena Vista Township.

According to the lawsuit, the checkbox is unlawful because it lacks statutory authority; was not promulgated through the required rule-making process of the Michigan Administrative Procedures Act, which requires a public notice and opportunities for public comment and a hearing; and violates the Voting Rights Act’s preclearance requirement, which requires the state to seek permission from the Justice Department or a federal court before making changes to election practices that impact voters in two Michigan townships, Buena Vista and Clyde.

In addition, the lawsuit contends that the erratic and inconsistent implementation of the checkbox violates the Fourteenth Amendment’s Equal Protection Clause, which requires voting rules and regulations to apply uniformly across the state.  According to complaints and media reports, enforcement of the checkbox requirement varied from place to place, from voter to voter, and even from hour to hour. Some registered voters were required to check the box in order to receive a ballot, while other voters encountered a challenge process. Some were made to listen to a statement and then given a ballot; and others were not asked about their citizenship at all.

According to the complaint, “There can be no question that, unless this court intervenes, Defendant’s unconstitutional interference with Michigan voters’ rights in the August primary election will be replayed in the November general election – but on a greatly magnified and much more deleterious scale.”

During the presidential primary in February, Secretary Johnson placed a controversial checkbox on all ballot application forms requiring Michigan voters to affirm their U.S. citizenship — even though legislation cementing the checkbox into law had not passed and voters must already be citizens in order to register. In July, Governor Rick Snyder vetoed the Secretary of State-backed bill that would have required the citizenship checkbox for fear that it could lead to confusion. In August, Secretary of State Johnson ignored this veto and implemented the checkbox during the primary election without following the administrative rulemaking process or the preclearance requirements of the Voting Rights Act.

 The checkbox caused confusion in voters and poll workers during the primary. In fact, Johnson was forced to send a clarifying directive to local election workers stating the box was unenforceable on Election Day, and a report released by Michigan Election Coalition shows that 38% of calls to voter election hotlines were related to the Michigan citizen checkbox.

Prior to filing the lawsuit, the Michigan Election Coalition sent Secretary Johnson several letters urging her to omit the checkbox, but she has said that she will continue to use it in t November.
 To read the complaint, go to: http://www.aclumich.org/sites/default/files/checkboxcomplaint.pdf. To read the letter, go to: http://www.aclumich.org/sites/
default/files/CheckboxLetter.pdf. To read the full MEC Primary Election Report, go to http://
www.aclumich.org/sites/default/files/PrimaryElectionsReport.pdf.

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