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Monday, October 08, 2012



Published October 8, 2012

“Michigan becomes the latest state to have parts of its voting law ruled unconstitutional”

by Nathan’ette Burdine-Follow on Twitter@nbnylemagazine

            Michigan has become the latest state to have parts of its voting law ruled unconstitutional.  According to the Detroit News’ Chad Livengood’s article, “Citizenship question ordered off voter form,” a federal judge ruled on Friday that Michigan could not require voters to answer a question about their citizenship.  The citizenship question has been on the ballot since the February 2012 GOP Presidential Primary.  Governor Snyder vetoed the bill in July.  Although Secretary of State Ruth Johnson removed the question from the absentee ballots, she included the question on the non-absentee ballots.  According to Livengood, Johnson has argued that the citizenship question enables the state to preserve American citizens’ voting rights by identifying and then removing non-citizens’ names from the voter rolls.  The case made it to federal court after voting rights groups challenged the legitimacy of the citizenship question on the ballot. 

At issue for the court was if the secretary of state had created an undue burden on one group of citizens by having them to answer the citizenship question, while not having those sending in an absentee ballot to answer the citizenship question.  The judge ruled that the act in its self was discrimination and therefore unconstitutional.  According to Livengood, the U.S. District Court Judge Paul Borman stated that the enforcement of the law would not be the same throughout the state and this will create “confusion” at the polls.  Livengood quoted the judge as saying, “It really is a burden on the right to vote in terms of slowing things down, in terms of confusion.”  The judge also stated that the citizenship question created a “lack of equal protection.”  According to Livengood, the judge asked, “If it’s so important, then why isn’t it on the absentee ballots?” 

            Unfortunately for Johnson, she could not give a reasonable answer to the judge’s question.  She was faced with two facts she couldn’t get around.  The first fact is that the governor vetoed the bill and the second is that Johnson created two classes of people by allowing the citizenship question on the non-absentee ballots.  In July, Governor Rick Snyder vetoed bills H.B. 5061 and S.B. 803 that would have allowed the citizenship question to appear on the ballot.  The bills were sponsored by state Rep. Brad Jacobsen and state Sen. Darwin Booher.  The bill required that a person confirm his citizenship twice before he received a ballot.  Those getting an absentee ballot had to provide a voter’s ID.  Also, if an individual did not answer the citizenship question on the absentee application then he would be given a second absentee ballot, before the polls close on Election Day, and allowed to answer the question.  And if the voter failed to answer the citizenship question, then his ballot would not be counted.

Governor Snyder wrote a letter, dated July 3, 2012, to the state legislators.  In the letter, Governor Snyder stated that voter “confusion” would occur.  The governor said, “Enrolled House Bill 5061 requires a clerk to issue an absent voter ballot to a person who did not check the citizenship box on the absentee application but not count the ballot unless he or she answers the citizenship question before the polls close on election day.  I am concerned that enrolled House Bill 5061 could create voter confusion among absentee voters.”  The “confusion” for the citizen will most likely occur because they are completing an absentee application, which the clerks can check the legitimacy of, along with an absentee ballot.  So the voters will most likely wonder why it is they are given a second ballot when they have already completed one.  Hence, the preservation of American citizens’ voting rights, which the secretary of state says she is trying to preserve, will be negated by the act she is using to preserve voting rights.  Despite the governor’s veto, Secretary of State Ruth Johnson refused to remove the citizenship question from the non-absentee ballots.  As a result, the August primary caused confusion among voters and some clerks refused to issue ballots that had the citizenship question.

According to the Detroit Free Press’ Christina Hall’s article, “Macomb County won’t ask voters about their citizenship;  Oakland County to use controversial forms,”  Carmella Sabaugh (Macomb County Clerk/Register of Deeds) cited the governor’s veto as a reason why she did not put the ballots out with the citizenship question.  Sabaugh told Hall that it was as simple as making sure that all voter’s had the right to vote and the citizenship question would limit that because of the “confusion” it would cause.  Hall noted that a resident, Glen Rehan of Shelby Tonwhship, Michigan, was turned away because he wouldn’t answer the citizenship question.  Hall quoted Rehan as saying, “I was being denied to vote for my right on these issues over my citizenship, which has never been questioned.  I shouldn’t have to jump through one more hoop to cast my ballot.”  According to Livengood, it wasn’t until after the secretary of state was sued that she sent out a memo stating that the citizenship question should be removed from absentee ballots.  And to make matters worse, the state elections director, Chris Thomas, told the court that the citizenship question was not removed until after the attorney told them to remove it.  Hence, the secretary of state had already been told that the question was unconstitutional.  Yet, she proceeded as she did despite the governor’s veto and the attorney’s recommendation.   

            On Friday, Ruth Johnson sent out a letter responding to the court’s decision.  In her letter, Johnson implied that her actions were the result of what she alleged is the federal government’s inaction on cracking down on illegal immigrants who are abusing the system.  Johnson said, “We’re disappointed because the federal government has refused to help us clean up the Qualified Voter File and now a federal judge has ordered us to not ask people if they’re U.S. citizens at the polls.  As to non-citizens, our staff has verified cases of non-citizens on our voter rolls.  We estimate there are as many as 4,000 individuals on the rolls today.  We will continue to push the federal government-the only ones with the information-to help us identify remaining non-citizens so they can be removed.  This was a problem they helped create and they need to help Michigan and other states clean it up.  That is just common sense.”  What Johnson is calling “common sense” has proven to be confusion.  The fact Secretary of State Johnson refuses to realize is that she has created an unequal protection under the law by treating two different sets of citizens, non-absentee voters and absentee voters, differently based on the manner in which they vote. According to Livengood, Judge Borman will be issuing a written injunction on Tuesday.  Early voting for the November 6, 2012, presidential election has begun.  However, the effects of the citizenship question being on the ballot may not be known until after the election.







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