A State Hostile to Protecting Voter Rights

The following op-ed, A State Hostile to Protecting Voter Rights appeared in the Star Ledger on November 6, 2007. It was written by ACLU-NJ Executive Director Deborah Jacobs.

A vote is a voice and a fundamental exercise of our political will and freedom of speech. The health of our democracy depends on our exercise of this right, as do politicians' careers. Given the stakes, you'd think that state officials would do all they could to make casting ballots as clear cut as possible.

Yet when it comes to voting, New Jersey has one of the worst systems in the nation. Even voting rights experts, let alone the rest of us, struggle to navigate the welter of rules governing our voting processes.

The list of compliance failures is long and embarrassing.

As residents go to vote today, they will find countless polling places remaining inaccessible to disabled voters. We have never complied with the 1993 motor voter driver's license-voter registration law. We missed the federal Help America Vote Act's deadline for implementing a statewide voter registration database, thanks to overly restrictive voter registration regulations.

And now we're on course to miss the January 2008 state deadline for ensuring that every voting machine produces a backup paper record in case the machine fails. In fact, seven years after the debacle of the 2000 presidential election, New Jersey still lacks a statistically accurate, fair and efficient ballot audit system, rendering results of today's voting essentially unverifiable.

At the same time, we've done next to nothing in the way of state-sponsored voter outreach and education. In theory, we have an advocate for voters in the state Division of Elections. But in reality, the division lacks independent authority to oversee elections and compel state officials to comply with the law. Why? Because it resides within the Attorney General's Office, which provides legal representation to the same officials that the division should hold accountable.

It's a mess.

Unfortunately, the attorney general has mucked it up further by forbidding voter advocates from distributing nonpartisan voting rights information within 100 feet of the polls, violating freedom of speech and contravening long-standing protocol. The attorney general has wrapped this suppression of our rights in the Orwellian guise of protecting our rights, asserting that voter education and advocacy are equivalent to political campaigning.

The Legislature long ago determined that electioneering for candidates within 100 feet of polls should be limited to combat voter intimidation, but it properly left other free-speech activities alone.

Yet the Attorney General's Office has restricted nonpartisan free-speech activities such as voting rights outreach, exit polling, poll monitoring and simply handing out information unrelated to elections at the polls.

The elections in 2004 and 2005 underscored these and other problems, which were particularly evident in Camden, Middlesex and Essex counties, judging by the waves of calls to voter assistance hotlines.

For instance, volunteer poll monitors like Elizabeth Houston, a Rutgers College student at the time who monitored elections at the Lord Sterling School in New Brunswick, were threatened with arrest by local police simply for handing out Know Your Rights cards to voters outside the polls.

Despite efforts to clarify the law and assert voters' interests through a succession of attorneys general, we're back where we started. In 2006, Zulima Farber, then the attorney general, rightly determined that handing out information and advocating voters' rights are protected free speech, not electioneering.

But only two months later, newly appointed Attorney General Stuart Rabner nullified that protection -- just in time to stifle free-speech and voter protection efforts at the polls for the November 2006 election.

The current attorney general, Anne Milgram, has proven herself no more concerned with our rights. In a recent letter, Milgram's office asserted that no one can have contact with voters entering polls, not even merely to provide Know Your Rights cards, and that county election officials must give advance approval to anyone wishing to survey voters.

Last month the American Civil Liberties Union of New Jersey filed a lawsuit asserting that the attorney general's position conflicts with the will of the Legislature and violates residents' First Amendment right to free speech.

Elizabeth Houston has since entered Rutgers Law School, where she will no doubt learn that voting rights and freedom of speech are fundamental American legal principles, central to our status as a great democracy.

Too bad state election officials won't be required to attend class with her.

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