Judge Atlas Rules True the Vote Has No Right to Access Unredacted Copies of Poll Books and Absentee Ballots Used in the 2012 Mississippi Senate Primaries, But Was Entitled to Sue the Mississippi Republican Party
Federal law should facilitate checking to make sure elections are not stolen and Mississippi should reconsider the wisdom of both open primaries and an unenforceable state law prohibiting people who don't intend to vote in the general election for the party in the primary of which they vote.
The Friday before Labor Day is an especially good days to bury news and Judge Atlas, a Texas federal district court judge sitting on the case brought by non-partisan election integrity organization True the Vote against the Mississippi Republican Party, the Mississippi Secretary of State and the clerks of nine Mississippi counties in order to ascertain who really won the runoff in the race for the Republican United States Senate nomination between incumbent Thad Cochran and challenger Chris McDaniel, released her decision blocking the release of documents which would facilitate a determination of whether votes were cast legally or illegally.
As I expected, Judge Atlas also denied the Mississippi Republican Party's brazen motion to sanction True the Vote for making it a party to the lawsuit. Unfortunately, she did not treat the sanction motion itself as frivolous and sanctionable. See Like the Obama Admininstration, Mississippi GOP Targeting True the Vote for Promoting Election Integrity (www.webcommentary.com/php/ShowArticle.php?id=gaynorm&date=140808).
True the Vote had sued for access to unredacted copies of the poll books, absentee ballots, and other materials used in the recent Mississippi Senate elections.
That material would show who really won the runoff and should not be kept from the public, which has as legitimate an interest in ascertaining an election winner as the candidates and exposing vote fraud and vote stealing.
The Mississippi Republican primary was an "open" primary, meaning being a registered Republican was not required to vote in it.
However, Mississippi law prohibited persons who had just voted in the Democrat United States Senate primary from voting in the Republican primary as well as persons who did not intend to vote Republican for United States Senate in the runoff.
The intention requirement is unenforceable, but counting the number of persons who first voted in the Democrat primary and then voted in the Republican runoff is doable, albeit laborious, if such persons are identified from the voting records.
Judge Atlas ruled that the National Voter Registration Act (NVRA) does not cover poll books.
She opined as follows:
"Plaintiffs seek unredacted copies of poll books, contending that disclosure of these documents is required by the NVRA. Defendants contend poll books are not within the NVRA disclosure mandate and, alternatively, that poll books, if required to be disclosed under the NVRA, may be redacted to protect voters’ privacy interests in their birthdates (when accompanied with their names and current addresses). '[A] poll book is a list of those voters who are eligible to vote in a particular election who are all . . . on active status.' A separate poll book is printed for each voting precinct for each election approximately one week before an election. Poll books are generated from the electronically stored information on SEMS and contain each voter’s name, date of registration, voter registration number, current address, date of birth, and voting district.
"Additionally, poll books contain 'a number of blank columns for the dates of elections.' For the elections held in Mississippi in June 2014, the poll books contained columns both for the June 3rd primary and for the June 24th primary runoff elections. Inactive, pending, purged, and rejected status voters are not listed in poll books. Voters not listed in poll books may submit a paper 'affidavit ballot.' Poll books thus are not precinct-specific subsets of the voter eligibility lists maintained by the State and the Counties through SEMS.
"Plaintiffs’ focus for this NVRA challenge is the June 24, 2014 primary runoff election. Under Mississippi’s 'open primary' system, voters do not register by party affiliation. Thus, on a primary election day, voters may vote in either party’s primary. At polling precincts, poll workers for the Republican primary and for the Democratic primary are each given an identical copy of the county poll book. If an individual votes in a particular election, a poll worker will mark 'voted' in the poll book column relevant to that election. Voters do not sign poll books. If an Election Commissioner determines that a voter is 'disqualified from voting, by reason of removal from the supervisor[’]s district, or other cause, that fact shall be noted on the registration book and his name shall be erased from [that precinct’s] pollbook.'
"The Court concludes that poll books are not subject to disclosure under the NVRA Public Disclosure Provision. Poll books do not reflect all voters eligible to vote on election day. Poll books list only active status voters, which is a subset of all registered and potentially eligible voters. Inactive and pending status voters, for example, may still vote in an election despite not being listed in a poll book. The fact that these voters voted in the election will not be recorded in a precinct’s poll book. Because poll books are only partial lists of eligible voters, they are not records that are reviewed to ensure the accuracy and currency of 'official lists of eligible voters.' After an election, as in this case, poll books serve as a record of which active status voters voted in that election. Poll books are not used to update lists of eligible voters.154 Voter statuses do not change as a result of the State’s processing of poll books. Whether a voter in 'active' status voted or failed to vote in a particular election does not affect that voter’s eligibility to vote in future elections.
"Plaintiffs contend that poll books reflect whether an individual voted in a party’s primary and thus are necessary to ensure that certain voters do not illegally vote in the other party’s primary runoff election. Plaintiffs thus argue that even if poll books do not concern 'the accuracy and currency of official lists of eligible voters' regarding a primary or general election, poll books do concern the eligibility of voters for a primary runoff election. Plaintiffs point out that Mississippi’s open primary system permits a registered voter to vote in any party’s primary, but prohibits an individual who voted in one party’s primary from voting in the other party’s primary runoff.
"The Court is unpersuaded by Plaintiffs’ argument. While poll books may be one of multiple bases to determine who is eligible to vote in a specific party’s primary runoff election, these books are not records used to ensure the accuracy and currency of official lists of eligible voters.159 Because the NVRA Public Disclosure Provision concerns records regarding the registration and removal of voters from the Mississippi statewide voter roll (i.e., the 'official list of eligible voters'), poll books do not fall within the ambit of the Public Disclosure Provision."
In addition, Judge Atlas concluded that the NVRA does not cover absentee ballots and applications:
"The NVRA Public Disclosure Provision does not encompass absentee ballot applications or absentee ballot envelopes. These documents neither concern voter registration nor are records concerning a program or activity to ensure the accuracy and currency of the voter roll. Absentee ballot applications are filled out by individuals already registered to vote in Mississippi. There is no evidence that these applications are used to update or maintain the voter roll. Similarly, an absentee ballot envelope, which contains only the voter’s affidavit, her signature, and the signature of a witness, is not used to ensure the accuracy or currency of the official voter roll. Instead, absentee ballot envelopes serve only as proof that a particular voter actually cast a ballot in an election. Because they are records of voting, not voter registration or removal, absentee ballot applications and envelopes are not within the NVRA Public Disclosure Provision."
Fortunately, Judge Atlas's controversial decision would receive de novo review upon appeal.
Unfortunately, an appeal would not only be very expensive, but also it would not be decided before the general election in November.
If Judge Atlas's narrow interpretation is correct, then her decision highlights critical deficiencies in the NVRA.
Federal law should facilitate verifying to make sure elections are not manipulated for partisan purposes or stolen for personal and/or partisan purposes.
In addition, Mississippi should reconsider the wisdom of both open primaries and an unenforceable state law prohibiting people who don't intend to vote in the general election for the party in the primary of which they vote.
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.