More on Federal Lawsuit Against Naturalized Citizens Provision in HB3

Tonight I spoke at some length with Subodh Chandra, one of the attorneys for plaintiffs in the federal lawsuit Boustani v. Blackwell, No. 1:06-cv-02065-CAB (N.D. Ohio), filed in Cleveland today, which challenges the provision of the Republican-created "election reform" law, House Bill 3, that requires naturalized citizens to produce a naturalization certificate on request in order to cast a ballot.

The complaint was filed electronically from Atlanta. Plaintiffs' counsel are scattered about (including lawyers associated with the ACLU, the Brennan Center for Justice at my alma mater, NYU School of Law, and the Lawyers' Committee for Civil Rights Under Law), but the lead attorney is Chandra's classmate, Daniel J. Tokaji, an election law specialist who teaches at the Moritz College of Law at The Ohio State University. Chandra has played a "heavy role" in preparing the case, including locating individual plaintiffs (many in the Cleveland area). Other plaintiffs are community organizations such as the Asian American Bar Association, the Council on American-Islamic Relations of Ohio, and the Federation of India Community Associations. There was no press conference today, but the ACLU press release on the filing of the complaint is here.

The judge assigned to the case, Christopher Boyko, was appointed to the federal bench about two years ago after lengthy service on the Cuyahoga County Court of Common Pleas. He was formerly the law director for the Cleveland suburb of Parma. A Republican appointee, Boyko is regarded as a fair, diligent, and all-around high quality judge. Significantly, he is the grandson of Ukrainian immmigrants.

There is no direct precedent for the claims advanced in this case (in fact, there doesn't appear to be a directly parallel provision in the law of any other state). However, there are several cases from the U.S. Supreme Court establishing the general principle that (except for the explicit constitutional restriction on eligibility for the Presidency) there shall be no second class citizenship in this country. Many cases have held that government entities may not treat naturalized citizens as second class in various ways, such as eligibility to serve as state troopers. Naturalized citizens, Chandra said, are assumed to be loyal and have all the rights and privileges of other citizens.

The challenged provision of Ohio law is codified at O.R.C. section 3505.20. As Chandra explained it to me, when one goes to vote, an "election judge" (i.e., one of the poll workers), completely as a matter of discretion, may ask "Are you a citizen?" If the answer is yes, that person may ask "Native born or naturalized?" If the answer is naturalized, then the poll worker can demand production of a certificate of naturalization. A driver's license or even a passport is not sufficient, under the plain language of the statute. It doesn't matter how many times the naturalized citizen has voted before, or that a U.S. passport cannot be obtained without proof of citizenship. As Chandra pointed out, this naturalization certificate is not some wallet-sized card that people carry around. Even if a person has one (many don't, especially if they have moved around a lot), it is probably locked away in a safe deposit box or a file cabinet somewhere, like a birth cerificate might be.

If the would-be voter can't produce the certificate on the spot, then the voter may vote only by provisional ballot. (We learned in 2004 that many of those are never counted.) The burden then shifts to the voter to appear at the Board of Elections within ten days with sufficient documentation, which isn't explicitly defined but would appear to be a naturalization certificate once again since a U.S. passport didn't qualify at the polling place. Aside from the burdensome nature of this requirement, imagine the confusion and delay while the Board tries to locate and produce individual provisional ballots to match to proffered citizenship documents on a piecemeal basis.

Just to hammer home the absurd nature of this procedure, Chandra noted that the web site of the U.S. Customs and Immigration Services indicates that a replacement naturalization certificate costs $200 and can take a year to obtain. So, if you were challenged at the polling place and had to get a replacement certificate to permit your provisional ballot to be counted, it would be impossible, no matter how indisputable the essential fact of your citizenship. The main arguments advanced by plaintiffs in the case are that the expense of compliance with this requirement is an unlawful poll tax, and that this disparate treatment of naturalized citizens violates the constitutional guarantee of equal protection under the law.

The individual plaintiffs in this litigation are a remarkable group. The first-named plaintiff, Laura Boustani, came to this country from Lebanon while in high school. She was Mayor Michael White's press secretary and is now a highly regarded media consultant. Former Ohio First Lady Dagmar Celeste was born in Austria, and has long since lost track of her naturalization certificate as she has traveled around the nation and the world. Three of the plaintiffs are sisters of Cuyahoga County Treasurer Jim Rokakis and Assistant U.S. Attorney Alex Rokakis. (The Rokakis brothers were born in this country but their sisters were born before the family arrived, so the challenged law applies to the latter but not to the former.) Plaintiff PS Murthy is the elected county coroner of Stark County, so presumably he would appreciate the chance to vote for himself without interference. Margaret Wong, born in Hong Kong, is Cleveland's leading immigration attorney, an entrepreneur, and a pillar of the community.

Chandra points out that this is a very personal issue for him. He said that everything he has is due to the hard work and the pursuit of the American Dream by his parents and his mother-in-law, all naturalized citizens subject to different treatment than him under this law. Also, Chandra emphasized that this should not be a partisan issue, since there are naturalized citizens in both political parties. He is cautiously optimistic that Attorney General Jim Petro (R-Rocky River) will be persuaded by the analysis contained in the complaint and will agree to a consent judgment in the case.

I told him not to hold his breath on that last part.

UPDATE: Coverage in tomorrow's edition of the Cleveland Plain Dealer indicates that Secretary of State Ken Blackwell may concede that the provision challenged in this lawsuit is unenforceable.