Going rogue 

Why a federal judge had to rein in GOP Secretary of State Ruth Johnson

click to enlarge JUSTIN ROSE
  • Justin Rose

Michigan Secretary of State Ruth Johnson stands there, trying to deny the undeniable.

She has just suffered what should be an embarrassing defeat in U.S. District Court. After a daylong hearing last Friday, Judge Paul Borman immediately issues an order for Johnson and the state elections officials she oversees to remove a controversial question from a few million forms that potential voters have to fill out when they go to the polls on Election Day.

"Are you a United States citizen?"

At first blush, it might not be readily apparent exactly why that simple and seemingly appropriate query might have created such an uproar, prompting a diverse group to sue Johnson.

Voters are supposed to be American citizens. There's no question about that.

So, you might ask, what's the problem with having voters affirm that in order to obtain a ballot? 

But once you dig into it, that apparently innocent question ends up being much more complicated than it seems — complicated enough to have ended up in front of a federal judge to get it all sorted out. 

Johnson takes the loss with apparent grace, congratulating the attorneys who have defeated her, shaking their hands and offering what must be a forced smile, because this has not been a good day.

She didn't want to be here at all. Lawyers from the Michigan Attorney General's Office attempted to have the proceedings take place without her, arguing that she had immunity under the 11th Amendment's limits on citizens' ability to sue states. In addition, the AG's Office claimed, Chris Thomas, a longtime bureaucrat who heads Michigan's Bureau of Elections, would be able to answer all questions.

On that point, at least, it turns out that they are right. Johnson never offers a word of testimony. She sits at a table, taking copious notes, filling page after page in a legal pad, preparing. But she's never called to the witness stand.

Neither are any of the plaintiffs, a group that includes several private citizens, one county clerk, an SEIU local, the nonprofit group Latin Americans for Social and Economic Justice (LA SED) and the ACLU.

After Judge Borman has eviscerated the supposed justification for placing that question on the voting form, Johnson gamely walks over to congratulate Mary Ellen Gurewitz and the other attorney representing the coalition. Johnson, like a good soldier, then squares her shoulders and, with the same forced smile plastered on her face, turns to face a clutch of reporters wanting to know what her response is.

She's disappointed, of course.

Democracy is a sacred thing, and every vote wrongly cast by a noncitizen is an affront to the process. And who knows, maybe there is an election somewhere, sometime, when a single vote makes a difference.

Of course, as the earlier testimony has revealed, her office has been able to identify only a handful of instances where it's been proved a noncitizen actually voted.

Which brings us to the question the Metro Times wants to ask. The question about Johnson's supposed neutrality. 

She's a solid Republican, for sure. That's no secret. But as secretary of state, when it comes to overseeing elections, she's supposed put party allegiances aside and act more like any umpire, making sure everything is fair and square so that one side isn't given an unfair advantage over the other. Operating as a political hack isn't supposed to be part of the job description.

But when she put the weight of her office behind a package of bills introduced in the Legislature — a package that included the citizen-check box — Ruth Johnson opened herself up to criticism that she was trying to tip the table in the direction of the GOP when voters go to the polls on Nov. 6 to select our president.

It's not just Democrats who've cried foul.

When the Legislature held hearings on the issue, the League of Women Voters — an organization that's about as middle-of-the-road as they come — began speaking out against what Johnson and the Republican-controlled Legislature were attempting.

If there were some Dems on board initially, as Johnson says, they jumped ship by the time they had to say yea or nay.

Michigan isn't the only place this kind of stuff is hitting the fan. Around the country, in states that are under Republican control, laws have been enacted that critics say are attempts at voter suppression.

Not all voters, mind you. Just those who are likely to cast a ballot for Democrats: students and senior citizens, the poor and minorities.

"Ahead of the 2012 elections, a wave of legislation tightening restrictions on voting has suddenly swept across the country," the Brennan Center for Justice, a nonpartisan project at New York University School of Law, reported last year. "More than 5 million Americans could be affected by the new rules already put in place [in 2011] — a number larger than the margin of victory in two of the last three presidential elections."

Liberals are clear as to why they think it's happening. Conservatives have been citing it as a goal for decades.

"I don't want everybody to vote," Paul Weyrich, a leading conservative strategist, told a gathering of evangelical leaders in 1980. "... As a matter of fact, our leverage in the elections quite candidly goes up as the voting populace goes down."

Jump ahead more than 30 years and you get this October 2011 report in Rolling Stone:

"As the nation gears up for the 2012 presidential election, Republican officials have launched an unprecedented, centrally coordinated campaign to suppress the elements of the Democratic vote that elected Barack Obama in 2008. Just as Dixiecrats once used poll taxes and literacy tests to bar black Southerners from voting, a new crop of GOP governors and state legislators has passed a series of seemingly disconnected measures that could prevent millions of students, minorities, immigrants, ex-convicts and the elderly from casting ballots."

"What has happened this year is the most significant setback to voting rights in this country in a century," Judith Browne-Dianis, who monitors barriers to voting as co-director of the Advancement Project, a civil rights organization based in Washington, D.C., told the magazine.

Yeah, you might say, but that's coming from Rolling Stone. What do you expect?

The thing is, as the tactic has played out, we've seen Republicans themselves reveal what's really motivating them.

In June, Republican Mike Turzai, the House majority leader in Pennsylvania, told fellow members of the state GOP exactly what he thought passage of a controversial voter ID law would accomplish in the Keystone state:

"Voter ID, which is gonna allow Gov. Romney to win the state of Pennsylvania, done," he said to applause.

In an attempt to do some damage control, Turzai's office issued a statement claiming:

"Rep. Turzai was speaking at a partisan, political event. He was simply referencing, for the first time in a long while, the Republican presidential candidate will be on a more even keel thanks to Voter ID. The reference was nothing more than that to a statewide Republican crowd." 

Just last week, however, a Pennsylvania state judge put the law on hold, ordering that voters don't need to show ID to vote in November. A trial will be held after the election to determine if the law should be implemented.

That victory is one in a string of court wins for those battling voter-suppression. Voter ID laws have recently been nullified in three states. There have also been victories in cases involving challenges to restrictive voter registration, early voting and student voting laws.

"By my count, Pennsylvania's is one of 11 voter suppression laws passed by Republicans since the 2010 election that have been invalidated by state or federal courts in the past year, including in crucial swing states like Florida, Ohio and Wisconsin. 

Borman's ruling in the lawsuit against Johnson brings that number to 12.

Also, bear in mind there's no credible evidence that voter fraud is a significant problem anywhere in the United States.

But that hasn't stopped the GOP from flooding state legislatures with bills, whatever their stated claims, that are truly intended to help Republicans win elections by devising ways to keep legitimate voters away from the polls.

As noted by the group People For the American Way earlier this year:

"The right to vote is the most fundamental cornerstone of a functioning democracy. Yet right-wing governors, legislators and election officials around the country have been working to make it harder for Americans to exercise that right, through voter ID laws, restrictions on voter registration, cutting back opportunities for early voting, and other suppressive measures."

It's a phenomenon so widespread in our culture that it's become fodder for satire.

There's a recent episode of The Simpsons, for example, where Homer shows up at his local polling place and is asked to present a photo ID.

"But I've lived here all my life," he says.

"Stopping all Americans from voting is for the protection all Americans," he's told.

"But I'm a 40-year-old white guy who didn't go to college and gets all his news from monitors at gas stations."

He's let right in.

Which is funny, when it's happening to a cartoon character. But out here in the real world, it is a matter of critical importance when obstacles are put in place to make voting more difficult.

For Ruth Johnson, though, what's been of critical importance — at least the way she presents it — has been keeping noncitizens from reaching the ballot box. So important, in fact, that she ordered the citizen question to be put in front of prospective voters even though Gov. Rick Snyder, bucking pressure from his own party, vetoed the legislation authorizing her to do just that.

The fact that the citizenship question looks very much like similar efforts under way in red states across the nation never comes up during the hearing conducted by Judge Borman. But, you might say, it is clearly the elephant in the courtroom. And so we want to hear what Johnson has to say in response to those who view her efforts through a cynical eye.

"I don't think this is a partisan issue," she says with steadfast assurance. "Every eligible voter should be encouraged to vote."

It's only those who shouldn't be casting ballots that she wants to block. And really, she's doing it for them as much as anybody.




A league of their own

What casts a long shadow of doubt over that claim is the bona fide nonpartisan nature of some of the organizations that spoke out against three measures in a 14-bill package proposed by Johnson and approved by the Legislature before being vetoed by Gov. Snyder in July.

In addition to the bill requiring every voter to reaffirm his or her citizenship before being allowed to obtain a ballot on Election Day, another of the vetoed bills mandated that people show state-issued ID before obtaining an absentee ballot. A third required state-supervised training of people participating in voter registration drives.

Susan Smith, president of the Michigan chapter of the League of Women Voters, went to Lansing at least twice this year to address the Legislature.

She wasn't opposed to the entire package. There's a bill, for instance, that clarifies when a politician's campaign expenditures cannot be used for certain legal expenses.

"This reform is consistent with the League's position in support of open and accountable government," she told the solons.

She also voiced support for a proposed post-election audit program that she considered to be "an effective way to identify possible errors and other problems in an election, which promotes election integrity."

But she also went to tell legislators that "there is no evidence of voter impersonation fraud and therefore no need for greater scrutiny of voters' identity. These requirements are not necessary and will make it more difficult for some people to vote."

She also spoke about problems associated with photo ID requirements in general, and as they apply specifically to Michigan.

"Photo requirements put up barriers to citizens who want to vote but don't have the necessary identification. While it is true that in Michigan, citizens may sign an affidavit in lieu of providing photo ID, this fact is not publicized by the Secretary of State nor any other election officials. Many qualified voters who do not have photo IDs may stay home, not knowing that signing an affidavit is an option.

"For many of us, using photo identification is a daily fact of life. However, an estimated 10 percent of voting-age Americans do not have an acceptable photo ID. In Michigan, this translates to more than 700,000 voting age citizens who do not have photo identification."

Smith, a former Central Michigan University business management professor, tells the Metro Times she's been involved with voting issues for decades.

Asked to give further insight into why she spoke out against the legislation, she chooses her words carefully.

"From the League's perspective, it seems as though there are bills being put forth that have the effect of suppressing the vote," she says. "No one knows what people's motives or intentions are, but that, in our opinion is the effect."

She takes pains to point out that the league is nonpartisan to its core before adding:

"I think what we're seeing here is a reflection of what's going on in our country in terms of extreme partisanship. Some people want to win at any cost."

Again, she stresses that she's not supporting one party over another, and points out that the Ann Arbor chapter of the League is selling T-shirts emblazoned with the slogan "Defenders of Democracy."

"I think that sums us up pretty well," Smith says.



Suffragette city

At a recent League of Women Voters rally held on the Capitol steps in Lansing, Ypsilanti resident Jan BenDor appeared dressed as a suffragette. She admits it looks a little silly, but says if it helps get people's attention, then it's worth it.

BenDor, a tall woman with copper-colored hair and a no-nonsense demeanor (regardless of the suffragette costume), is statewide coordinator for the Michigan Election Reform Alliance, a group that describes itself as a "nonprofit, nonpartisan, pro-democracy, grassroots organization dedicated to the realization of election processes that consistently uphold the principles of democracy to ensure the confidence of voters and maximize representation of all citizens of the United States of America."

Like others in the group, she volunteers her time. 

Voting rights, she says, are in her blood, with a family tree that can trace its roots back to founding father Benjamin Franklin. 

It is easy to get the impression that she's consumed by the issue of making sure every eligible voter has an opportunity to cast a ballot, and that those ballots are able to be accurately counted.

BenDor contends that the whole photo ID issue is ludicrous, and not only because getting one can be an obstacle to voting for many people. In her view, signature verification "is the gold standard" the state should be following. Getting a fake ID is relatively easy, she says; convincingly forging someone's signature, on the other hand, is extremely difficult. That's why banks keep signature cards on file.

Like many other experts, she too says that there's no indication that there's a widespread voter fraud problem.

What is a problem, she says, is the accuracy and security of electronic voting machines. For those who want to find out just how vulnerable we are to the kind of intentional fraud that can actually change the outcome of elections, she suggests tracking down a copy of the 2006 HBO documentary Hacking Democracy, which follows the trajectory of Bev Harris, a Washington State housewife and writer as she begins looking into the issue.

Watch the documentary and the conclusion is inescapable: Ours is a system primed for abuse. Since that movie was filmed, numerous studies have verified the ease with which supposedly secure electronic voting machines can be hacked, with the possibility that the outcome of elections could be manipulated without leaving a trace.

The good news for Michigan is that there is at least a paper trail that can be followed. But that doesn't mean the machines aren't subject to problems. As proof of that, she points to letters posted on the MERA website complaining about problems detected with electronic voting equipment being used in Oakland County.

The letters were written by Ruth Johnson when she served as Oakland County Clerk.

An October 2008 letter to Rosemary Rodriguez, then chair of the federal Election Assistance Commission, is particularly telling.

"While problems with performance and design [with the machines] have been documented, this is the first time I have ever questioned the integrity of these machines," Johnson wrote. "The issue is this — four of our communities, or 8 percent — reported inconsistent vote totals during their logic and accuracy testing. ... The same ballots, run through the same machines, yielded different results each time."

"Conflicting vote totals have reportedly surfaced in other areas of Michigan," Johnson adds, citing maintenance as a likely source of the problem. 

"I believe this matter, which is not a partisan issue, but an issue of integrity, needs your immediate attention, and I would urge you to investigate as so much is at stake."

These days, BenDor says she's not certain what happened to that Ruth Johnson, the one who was seen by the reformers at MERA as a sort of champion.

When it comes to the integrity of voting machines, BenDor says she hasn't heard a peep from Johnson about that since she became the state's top election official. 

Now, BenDor observes, it seems that Johnson, who was elected secretary of state in November 2010, has caved to the far-right radicals in the Tea Party.

Johnson can insist that she's acting in a totally nonpartisan manner, and, like the League's Smith says, you can't look into someone's heart and mind to determine that person's motives. But its also clear that there is good reason a Republican politician these days would want to appear super tough when it comes to battling voter fraud, even if it doesn't really exist.

A recent report from the left-leaning nonprofit group People For the American Way explains why. 

"A startling number of Republican voters believe that voter fraud is the reason President Obama won the 2008 presidential election. Public Policy Polling found one year after the presidential election that 52 percent of Republicans, and 26 percent of all Americans, 'think that ACORN [a now defunct organization geared toward helping poor people organize politically] stole the presidential election for Obama ...' Only 27 percent of the Republican voters believed that the president had been elected legitimately."

"Undocumented immigrants are another frequent target of voter fraud accusations," the report adds, "with Tea Party and anti-immigrant groups often alleging that the Democratic Party is working with undocumented immigrants to vote illegally."

The reality is much different.

The Brennan Center, a nonpartisan public policy and law institute, has studied the issue of voter fraud extensively. Its conclusion?

"The 'voter fraud' cry has been increasingly used to justify policies that suppress legitimate voters. But the cry is baseless; allegations of voter fraud — especially polling place impersonation fraud — almost always prove to be inflated or inaccurate."

Other studies arrived at a similar conclusion.

The most recent research was produced by 24 students, from 11 universities across the country, working under the direction of journalism professionals. More than 1,000 interviews were conducted and thousands of pages of documents were examined to create a national database for a project dubbed News21.

The results of that study?

"Analysis of the resulting comprehensive News21 election fraud database turned up 10 cases of voter impersonation. With 146 million registered voters in the United States during that time, those 10 cases represent one out of about every 15 million prospective voters."

"Voter fraud at the polls is an insignificant aspect of American elections," said elections expert David Schultz, professor of public policy at Hamline University School of Business in St. Paul, Minn, upon the study's release. "There is absolutely no evidence that [voter impersonation fraud] has affected the outcome of any election in the United States, at least any recent election in the United States."

It's been said elsewhere, but it's worth repeating: Strict voter ID laws are a solution in search of a problem.

The same can be said of Ruth Johnson's attempt to protect Michigan elections from noncitizen voters — and, apparently, to protect those voters from themselves.

As Judge Borman attempted to sort things out in his courtroom last week, it soon became apparent how ludicrous her attempt was, and what a fiasco it turned into.



Hey, you a citizen?

The citizenship question didn't just spring up. In October 2011, before seeking legislative authorization to begin using it, Johnson directed local clerks throughout the state to include it on both applications to obtain absentee ballots and the applications to vote people fill out when they show up at their local polling locations.

Sitting on the witness stand, elections director Thomas testified that originally it was used as a sort of test to see if people understood how to properly fill out ballots.

At some point, though, that stated purpose changed. During the February presidential primary, election workers were told that if a prospective voter failed to check the box affirming citizenship, they would be given a chance to swear to the fact. Refusal to do that would result in them being denied the opportunity to vote, period.

In June, the Legislature passed Senate Bill 803, the bill intended to give Johnson the state's approval to do what she was already ordering clerks throughout Michigan to do.

Then, in July, Gov. Snyder vetoed the bill, along with two others.

Sara Wurfel, a spokeswoman for the governor, told reporters that her boss was concerned that the check box might lead to confusion at the polls.

Members of his own party registered disappointment at the action taken by the governor, a former businessman holding public office for the first time.

On the left, groups such as the NAACP applauded. 

The same response came from middle-of-the-road groups such as the watchdogs at MERA, which Jan BenDor belongs to, and the League of Women Voters.

For her part, Johnson announced that she would ignore the veto and continue instructing local clerks to keep using the question. Which is what happened at some, but apparently not all polling locations during the August primary election. (Clerks were being allowed to use existing, older stock without the question until those forms ran out.)

With many voters aware that Snyder had vetoed the measure, some refused to check the box on principle, believing that it was there illegally.

Among them was Rich Robinson, founder of the Michigan Campaign Finance Network, a nonprofit watchdog group that tracks contributions to state politicians. When he refused to check the box he was denied the opportunity to vote.

He's one of the people who joined the lawsuit against Johnson.

The ACLU described the situation this way:

"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."

Things were such a mess that Johnson's office had to issue what it called a "clarifying statement" during the day while the election was still under way. Johnson and her crew were making up rules on the fly.

"This thing just seems so unevenly administered," Robinson told The Detroit News. "Equal protection says that all of the citizens have the same Election Day experience and clearly that wasn't the case on primary day."

And it wasn't gong to be that way on Nov. 6 either.

For starters, after the suit was filed, the secretary of state's office removed the question from its website for voters going online to get absentee ballots.

During his time on the stand, Thomas, the state's director of elections, told the judge that decision was made on the advice of legal counsel. Because such communications are privileged, the reasoning behind that decision is not disclosed.

In addition to that, clerks in Detroit, Dearborn and Lansing, as well as Ingham, Macomb and Washtenaw and two other counties, have ordered forms without the question for the upcoming election. They contended it wasn't legal.

At the hearing, lawyers for the coalition protesting the question told Judge Borman that having forms with the check box used in some jurisdictions but not others clearly violates the equal protection clause of the 14th Amendment to the U.S. Constitution.

Every voter in the state is supposed to be treated exactly the same. That's what the law requires.

After the issue exploded, Johnson took to the airwaves to justify her actions. She said the state, unable to get all the records it needs from the federal government, managed to conduct an exhaustive, tedious and time-consuming search of 58,000 driver's licenses and ID records.

She also wrote a guest opinion piece for The Detroit Free Press, saying her staff has discovered "963 were noncitizens on our voter rolls; 54 show a voting history." Based on the findings from that sample, they extrapolate that a total of more than 4,000 noncitizens are on the rolls and could, conceivably anyway, show up on Election Day.

Jocelyn Benson, the director of the Michigan Center for Election Law and an associate law professor at Wayne State University, wrote a piece of her own, putting Johnson's findings into perspective:

"In reality, she [Johnson] claims to have discovered 54 noncitizens who may have voted in Michigan's elections in the past decade, and as many as 900 others who are registered but have not voted," contends Benson, who ran as a Democrat against Johnson in 2010. "Yet the secretary of state is able to provide details on only two noncitizens who have recently voted. That's a far cry from 4,000."

Even more astounding is the explanation given in court that a major reason for asking the question is to keep noncitizens from inadvertently voting, committing a felony that would likely result in deportation if it were discovered.

The problem, it's explained, is that when someone fills out a voter registration form at the Department of Motor Vehicles, their names are automatically placed in the voter database. But there can be language problems and confusion as other DMV-related forms are passed back and forth, so the attempt to register to vote can be an innocent mistake.

Johnson doesn't want that mistake to result in some immigrant, unaware they are actually doing something illegal, losing their chance at citizenship by committing a felony when showing up and voting.

The flaw with that line of thinking is that the mere act of a noncitizen registering to vote is itself a felony, so a crime warranting deportation has been committed whether or not they vote.

As for the unequal protection, Ann Sherman, the assistant attorney general representing the secretary of state's office, blames the problem on a handful of "rogue" clerks who are refusing to fall in line and use the question.

But who's really gone rogue here — them or Johnson, who is insisting the question be asked even though the governor vetoed the legislation authorizing it?

At times, the whole process seems to have been drawn from some theater of the absurd.

Especially since, based on his questioning, Borman — a stately gent who looks like he could have been pulled from central casting to play the role of a judge in some movie — seems to have had his mind made up from the get-go.

During her closing argument, Gurewitz — part of a team of attorneys representing the plaintiffs — zeroes in on the ludicrous notion that the huge mess created by the citizenship question is happening to protect noncitizens from committing a second felony when just one is enough to send them packing.

"It's a pretty strange way for Michigan election officials to be protecting the interests of the state's voters," she says. 

Strange indeed. If you accept the state's explanation, all this turmoil is the result of pursuing a course that benefits noncitizens while being "detrimental" to actual citizens, who are forced to wait longer in lines amid heightened confusion.

After about six hours of all this, Borman informs everyone that, with the training of poll workers already under way, it's important he make an immediate decision. 

In announcing his ruling, he points out that, if the goal really is to alert noncitizens that they shouldn't be voting, large signs announcing the prohibition could be posted in every polling place.

Simple as that.

That way, the process isn't slowed down, which could cause some people to give up and go home before ever voting. No one is put on the spot, and subjected to potential ridicule or embarrassment, or the harassment of poll watchers, who can be from either political party, or the representative of any side involved in the outcome of a ballot measure.

Any of this could result in people becoming frustrated and not voting. Which is the last thing folks from the ACLU and LA SED and the League of Women Voters and the unions want. It's why they are here in court. To try and make sure that doesn't happen.

Borman takes pains to point out that he isn't ruling on the legality of Johnson's actions under state law. As a federal judge, that's not his role. Although he does note, just so it's not lost on anybody, that Johnson did this despite the governor's veto.

The bottom line, he says, is that what Johnson wants to do will "create turmoil, chaos, confusion," all of which will slow down the process — even though the state claims that the problems experienced during the August primary have been addressed and everything is expected to run smoothly.

It is a critically important issue. And a presidential election, which will bring out many times more voters than the number that showed up for the primary, is no time to be testing theories on how things will work.

So his decision is to issue an injunction stopping the attempt to have prospective voters answer the question, "Are you a United States citizen?"

Which leaves Ruth Johnson disappointed. 

Because this is all about making sure only eligible voters are casting ballots.

There's nothing at all partisan about it.

Nothing at all.



Curt Guyette is Metro Times news editor. Send comments to [email protected]

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