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Ballot change request draws ACLU interest
Aberdeen American News (SD)
Thursday, October 31, 2002
THE ASSOCIATED PRESS
Proposed changes in how absentee ballots are handled in South Dakota
might violate the federal Voting Rights Act, a lawyer for the American
Civil Liberties Union said Tuesday.
In a letter to the state attorney general's office on Tuesday, ACLU
lawyer Bryan Sells said any change in the way votes are counted is
subject to requirements of the 1965 act.
"As I am sure you are also aware, the state cannot lawfully enforce
such a change unless and until it has obtained preclearance under
Section 5 from the U.S. attorney general or the United States District
Court for the District of Columbia," Sells wrote.
But a lawyer for the state said the advice was intended to safeguard
voting rights and is not a change that would trigger the federal law.
The state rejects the suggestion that the secretary of state must
have federal officials screen advice given to county auditors about how
to conduct an election, said Deputy Attorney General John Guhin.
Secretary of State Joyce Hazeltine has asked county auditors to
change some procedures for handling absentee ballots on Election Day to
make sure the vote count is fair and accurate. The recommendations were
prompted by an ongoing federal and state investigation of
voter-registration fraud in South Dakota, she said.
Hazeltine asked auditors to hold absentee ballots until the polls
close. In some counties, absentee ballots are processed and dropped into
the ballot box by election workers throughout the day during lulls in
voting.
Holding the absentee ballots until the end of voting assures that
South Dakotans who vote in person that day will have their ballots
counted, Hazeltine said. If a false absentee ballot bearing the name of
a person who had voted that day turned up, it would be discarded.
Two South Dakota counties, Shannon and Todd, are affected by Section
5. The state and ACLU are in court over whether a number of election
laws passed over the years should have been precleared under that
section.
Sells said that while the act might cover only those two counties
specifically, his organization is reviewing the issue to see if it's
possible to enforce ballot handling one way in those counties and
another way in other counties.
"Some changes you can't just enforce in two counties," he said.
Guhin said a main duty of the secretaries of state across the nation
is to offer advice on handling elections.
"Moreover, no statute or rule has been changed so as to trigger the
Section 5 preclearance requirement for the two counties," Guhin said.
"What is complained about is only advice. The auditors remain free to
administer the election according to applicable law. The secretary of
state's suggestion is just that . . . a helpful suggestion."
He also scolded Sells for giving the letter to the news media before
state lawyers had a chance to review it, saying both sides would be
"better served if future correspondence does not become front-page ping
pong."
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