The undersigned voting rights organizations are writing to express our deep concern about your recent actions targeting legally registered student voters in Maine for investigatory action and sending them threatening correspondence likely to deter them from exercising their voting rights. Such actions provide strong evidence that you are violating federal statutory protections against intimidation and coercion of individuals in the exercise of their right to vote, as well as constitutional protections of the right to vote.
As reported in a news article published on September 21, 2011 by the Bangor Daily News, “Secretary of State Finds No Student Voter Fraud but Still Pledges to Improve System,” and other news accounts, you launched an investigation into the voter registration of 206 University of Maine students based on no evidence other than the unsubstantiated and baseless accusation of a partisan individual. Indeed, in your own September 21, 2011 press release (attached), you note, “Initially, the Chairman of the Republican Party, Charles Webster presented me with a list of 206 students, all of who have out-of-state addresses on file with the University of Maine system – some of which he believed voted twice in the same election and committed ‘voter fraud.’” If the information and quotations attributed to you and your representatives are correct, you launched this investigation without any evidence or credible allegation that any individual voted illegally.
Your investigation instead appears to have been based merely on the unsubstantiated concerns expressed by a source whose motives should have been, at very least, suspect based on his prominent partisan position. Exacerbating the situation is that, even after your own investigation failed to produce evidence of illegal voting or registration by any of these students, you sent a letter dated September 20, 2011 to 191 of them warning them that they may be violating Maine election and motor vehicle laws. You did not enclose instructions or forms for registering vehicles and obtaining drivers’ licenses, but you did enclose a “Voter Request to Cancel Registration,” which is a form apparently crafted for this particular group of students.
We believe that your actions violate the federally protected rights of these students under the Voting Rights Act of 1965 and other federal laws, as well as the United States Constitution and governing Supreme Court precedent in Symm v. United States, 439 U.S. 1105 (1979).
Initially, we would draw your attention to Section 11(b) of the Voting Rights Act, 42 U.S.C. § 1973i(b), which provides:
No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote, or intimidate, threaten, or coerce any person for exercising any powers or duties under section 3(a), 6, 8, 9, 10, or 12(e).
Given that you decided to launch an investigation aimed specifically at students who had changed their residency to the state of Maine and registered to vote as permitted by both Maine law and federal precedent, and after determining that no laws had been broken, you issued a letter to those legally registered students suggesting that they might be prosecuted for motor vehicle violations, it is difficult to view such an investigation as anything other than unlawful intimidation under Section 11(b) of the Voting Rights Act.
As you know, the above-referenced Symm case specifically affirmed the finding that students could not be treated differently than other residents for voting purposes. There is no justification for treating persons who registered and voted in a legally sanctioned manner as potential lawbreakers, without some independent evidence that a particular individual registered or voted illegally. The rationale set forth in your September 21, 2011 press release that Mr. Webster, an individual claiming no first-hand knowledge of any illegal activity, “believed” that these students voted twice in the same election should have triggered an investigation by your office into the source of Mr. Webster’s “beliefs” before it spawned a targeted investigation of baseless claims.
What is more disconcerting, and even less defensible, are the subsequent actions you took, and are currently taking, against these students. As your September 21, 2011 statement notes, your investigation, found no violation of Maine law by any of the 206 students on the list provided to you. No student was found to have registered or voted illegally in the state of Maine and none “voted twice in the same election” or “committed ‘voter fraud’” as Mr. Webster had alleged. Despite this, your office decided to single out these individuals and threaten them with repercussions under your motor vehicle laws and encouraged them to cancel their voter registration to cure such violation.
We have obtained a copy, via the internet, of the letter that was ostensibly sent from your office, and signed by you, to these students. The same is attached hereto. It is troubling for a number of reasons.
First, while your letter notes that you were asked to investigate certain students with out-of-state home addresses, and that said investigation is “now closed,” you never confirm to the recipients that your investigation revealed no wrong-doing by them. In fact, documents provided in response to an FOAA request suggest that you ignored a comment from the Attorney General’s office noting that it “seems odd not to tell the student that we found no evidence that they violated the election laws.” On the contrary, a plain reading of the letter implies that the investigation may have revealed certain improprieties with regard to voter registration by the recipient. That, of course, is entirely untrue.
Second, you go on to imply that all new residents of Maine have an affirmative duty to obtain a driver’s license. Of course, this is simply incorrect, given that non-drivers, as many university students are, have no such duty. Even setting this aside, rather than providing potential Motor Vehicle violators with a license application to cure this alleged defect, you suggest they cancel their voting registration and enclose the requisite form. You state, “If you are currently using an out-of-state driver’s license or motor vehicle registration, I ask that you take appropriate action to comply with our motor vehicle laws within the next 30 days (i.e., by October 20, 2011). If, instead, you are no longer claiming to be a Maine resident, I ask that you complete the enclosed form to cancel your voter registration in Maine so that our central voter registration system can be updated.” By enclosing a form to cancel the voter’s registration you strongly suggest that this is the option the recipient should follow to prevent further scrutiny and harassment by Maine’s Secretary of State.
In any event, this is a false choice. Your own investigation found no illegal registration by any of these students. Threatening prosecution, even indirectly, under the motor vehicle laws based on their status as registered voters is precisely the type of intimidation and harassment of persons exercising their lawful right to register and vote in a federal election covered by Section 11(b) of the Voting Rights Act. Voters in Maine – and in particular students - will now be fearful that exercising the right to vote will expose them to law enforcement investigation, and this will surely chill their future willingness to participate in elections. Indeed, under a predecessor statute to Section 11(b), the U.S. Court of Appeals for the Fifth Circuit held that local officials in Alabama had engaged in unlawful intimidation under the 1957 Civil Rights Act when they followed persons on their way home from a voter registration meeting and arrested them for actual traffic violations. U.S. v. Mcleod, 385 F.2d 734 (5th Cir. 1967). The pretext of carrying out an investigation of possible traffic violations did not immunize from scrutiny the conduct of local officials that tended to intimidate persons exercising their voting rights. Given the fact that you appear to have targeted these individuals only because they registered to vote, and that you specifically limited your investigation to these newly registered students, your investigation was clearly directly based on these voters’ exercise of their right to vote.
Moreover, even if it was not your intent to intimidate persons exercising their right to vote, the legislative history of Section 11(b) makes clear that a lack of intent is not a defense in a lawsuit alleging a violation of Section 11(b). While the 1957 Civil Rights Act made it unlawful for any person “to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose,” 42 U.S.C. § 1971(b), the reference to purpose was eliminated when the anti-intimidation provision was added to the Voting Rights Act of 1965 in Section 11(b). However, the House Report accompanying the Voting Rights Act of 1965 states, “Unlike 42 U.S. C. 1971(b) (which requires proof of a ‘purpose’ to interfere with the right to vote) no subjective purpose or intent need be shown.” H. Rep. No. 439, 89th Congress, 1st Sess. 30 (1965). Moreover, “the prohibited acts of intimidation need not be racially motivated” to be actionable under Section 11(b). Id. Because your investigation and subsequent correspondence are reasonably likely to intimidate persons in the exercise of their voting rights, they constitute a likely violation of Section 11(b).
In addition to constituting a likely violation of Section 11(b) of the Voting Rights Act, your unwarranted investigation of lawful voting activities and threat to pursue legally registered voters under other state laws potentially violates the criminal prohibitions of Section 12 of the National Voter Registration Act of 1993 (“NVRA”), 42 U.S.C. § 1973gg-10, which provides for criminal penalties against:
A person, including an election official, who in any election for Federal office -
(1) knowingly and willfully intimidates, threatens, or coerces, or attempts to intimidate, threaten, or coerce, any person for -
(A) registering to vote, or voting, or attempting to register or vote;
(B) urging or aiding any person to register to vote, to vote, or to attempt to register or vote[.]
Finally, we would also note that 18 U.S.C. §§ 241 and 242 provide criminal sanctions against persons who intimidate persons in the exercise of their constitutional right to vote or deprive persons of such rights.
Moreover, we believe that an investigation of persons based on nothing more than their exercise of their right to register and vote also violates their constitutional rights under the First and Fourteenth Amendments to the U.S. Constitution.
For all these reasons, we urge you to immediately: 1) issue a public statement clarifying and specifically stating that none of the students listed in Mr. Webster’s letter were found to violate any election law; 2) write directly to the recipients of your September 20, 2011 correspondence retracting your previous correspondence and noting that they have specifically been exonerated of any wrong-doing with respect to voting and are under no obligation to rescind their registration as Maine voters; and 3) cease and desist from further targeted efforts to harass, intimidate or coerce these or other legally registered Maine voters.
Because of our concern about the potential violations of law mentioned in this letter, we are providing a copy of this letter to the Voting Section and the Criminal Section of the Civil Rights Division of the U.S. Department of Justice, and the Maine Attorney General, and are requesting that the U.S Department of Justice commence an investigation of these potential civil and criminal violations.
Zachary L. Heiden
ACLU of Maine
121 Middle Street, Suite 301
Portland, ME 04101
ACLU Voting Rights Project
230 Peachtree Street NW
Atlanta, Georgia 30303
Demos: A Network for Ideas and Action
220 Fifth Avenue, 2nd Floor
New York, NY 10001