ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND

Transcription

1 ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND 99 HUDSON STREET, 12 th FL NEW YORK, NY TEL Voter Rights, Legal Issues in Voter Registration, and Election Rules for Nonprofits NEW JERSEY Voting is a fundamental right. Yet participating in the American electoral system either as a citizen or as a nonprofit organization involves certain rights and responsibilities. A voter is entitled to certain rights so that they can access the ballot in their own language, cast an informed vote, and preserve their vote should problems arise. Organizations are able to help their constituents and members participate in the electoral process, but special rules apply to taxexempt organizations. Moreover, a series of new state laws may make voting on Election Day or registering to vote more difficult. This legal fact sheet is intended to inform a voter of their rights and review legal issues when organizations seek to encourage voter participation. This fact sheet will review state law and federal laws under the Help America Vote Act of , National Voter Registration Act of , Voting Rights Act of and rules and opinions from the Internal Revenue Service. 4 Nonprofit organizations that are tax-exempt under the IRS (i.e., designated as a 501(c)(3) are expressly allowed by the IRS to engage in election-related activities, such as voter registration drives, voter education, and voter turnout. But all activities must be nonpartisan in that they do not endorse or prefer a particular candidate for elective office or a political party (i.e., Democrat or Republican). 5 This fact sheet provides an overview of the law. However, individuals and organizations that have specific concerns or questions should contact an AALDEF attorney for customized legal advice through ing votingrights@aaldef.org or calling I. Voter Registration In order to vote, a citizen must first complete a voter registration form. A voter should also reregister if he or she moved, had a change of name, or wants to change party affiliation. In order to be eligible to register, a resident in New Jersey must be a U.S. citizen, 18 years old by the date of the general election and a resident at their present address for at least 30 days before the election. Federal and New Jersey laws generally allow anyone to conduct nonpartisan voter registration drives. 6 New Jersey explicitly empowers third parties to distribute and help complete voter 1 Pub. L , 42 U.S.C U.S.C. 1973gg 3 42 U.S.C U.S.C. 501(c)(3) 5 26 U.S.C. 501(c)(3), Rev. Rul , I.R.B National Voter Registration Act, 42 U.S.C. 1973gg 1

2 registration forms. 7 However, third parties must provide their names and addresses on the completed form pursuant to N.J. Elec. Law 19:31-6. At voter registration drives, volunteers and staff distribute voter registration forms, encourage citizens to complete these forms, provide assistance such as translation, and answer questions. AALDEF advises that organizations: collect the completed forms photocopy the forms before submitting them to the elections office, and hand-deliver them to the appropriate elections office. Copying the forms is recommended as proof that the forms were submitted, in case they are later lost or mishandled by elections officials. The hand delivery of forms may prevent a voter from being subject to additional voter identification requirements required under federal law. 8 Although citizens can register to vote at any time during the year, applications must be delivered or postmarked at least 21 days before the election to take effect. 9 Voter registration drives can target a particular racial or ethnic group, neighborhood, or the organization s clients / members / constituents. 10 But if citizens who are not members of that minority group or neighborhood, or are not affiliated with the target population, want to register to vote, the organization must still accept, deliver, and process their forms, along with all the other voter registration forms. Once a voter is registered, they will receive official notices about the location of their poll sites, date and time of the election, and other information such as their assigned district numbers. It generally takes a few weeks after the registration form is submitted for the voter to receive their voter registration card in the mail. If a voter does not receive a confirmation, he or she should call the local Board of Elections before the registration deadline to confirm that he or she is registered. A. Completing the Forms and Providing Assistance The citizen individuals should complete the form. But if he or she cannot complete the form on their own, the organization can assist them. If individuals cannot write, someone else may write the applicant s name, address, etc., at the direction of the applicant. Volunteers may also translate questions on the form. However, only the voter may sign the form (since signing indicates taking a legal oath). A citizen who has difficulty reading the English language can also complete and submit the National Mail Voter Registration Forms that are translated into Chinese, Korean, Vietnamese, Japanese and Tagalog. 11 All states are required to accept and process these translated forms. 12 However, it is preferred to complete the state voter registration form. In New Jersey, state voter registration forms are available in Korean. The National Voter Registration Act requires the 7 N.J. Elec. Law 19: HAVA, 42 U.S.C (b), N.Y. ELEC. LAW 8-303(1) (2005) 9 N.J. Elec. Law 19: Rev. Rul , I.R.B. 1422, Tax Advice Memorandum U.S.C. 1973gg-4(a)(1) U.S.C. 1973gg-4(a)(1) 2

3 state election official to ensure that voter registration forms are available for distribution through governmental and private entities, with particular emphasis on making them available for organized voter registration programs. 13 A few obligations apply in completing the voter registration form. The individuals must affirmatively check off the boxes that ask whether the individual is a citizen of the United States and is over 18 years old. If those questions are left blank, the form will automatically be rejected, even if the voter s date of birth or oath of citizenship clearly show that the voter is of age and is a citizen. Furthermore, the individual must legibly write his or her name, date of birth, current residential mailing address, driver s license number (or the last four digits of his or her social security number), and other requested information on the form. A citizen must take the oath by signing the registration form. Organizations may not lead the voter to enroll in a particular political party or to vote for particular candidates. 14 However, organizations can advise the voter of the effect of not enrolling in a political party. Voters enrolled in the political party are allowed to vote in the party primary election. B. Inadvertent Registration by Non-Citizens Non-citizens may not register to vote. Accidentally registering to vote and signing the oath declaring that one is a citizen of the United States may be a deportable offense. 15 Non-citizens who accidentally complete voter registration forms, either at a voter registration drive or through the motor vehicles office, must affirmatively de-register by requesting that their registration be cancelled. This request must be made in writing. Contact AALDEF for assistance. C. Proof of Identity and Citizenship Some states require that a voter prove his or her identity or United States citizenship before registering to vote or before voting on Election Day. Under both Federal and New Jersey State law, when registering to vote, new registrants are required to provide their driver's license number, or the last four digits of their social security number with their registration application. If the registrant does not provide either a driver's license nor a social security number, the state will assign a unique ID number for voter registration purposes. A first-time voter who registered by mail and cannot be matched with an existing state or Social Security Administration record must present one of the following with their registration form or at the polling place on election day: Driver's license Student or job ID Military or other government ID Store membership ID U.S. passport U.S.C. 1973gg-4(b) 14 Rev. Rul , I.R.B et seq. 15 Agholor v. Holder, 454 Fed. Appx. 360, 362 (5th Cir. 2011)(unpublished); Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under... Federal or State law is inadmissible. 8 U.S.C. 1182(a)(6)(C)(ii)(I). 3

4 Bank statement Car registration Government check or document Non-photo driver's license Rent receipt Sample ballot Utility bill Any other official document providing ID II. Voter Education and Turnout A voter often wants information or guidance about whom to vote for in upcoming elections. The IRS prohibits tax-exempt nonprofit organizations from preferring a political party or a particular candidate for office. Such preferences constitute endorsement. 16 However, organizations can provide information about candidates through a nonpartisan voter guide or candidate forum. 17 In both of these, candidates are asked particular questions and their responses are made available to the public. To ensure nonpartisan compliance, all the candidates running for office (or at least the top major candidates) must be invited to participate. Impartiality in asking and reporting answers to questions is required. Organizations may also inform the voter of his or her rights on Election Day, such as where to vote, what identification documents to bring, whether language assistance will be available, and what to do in case of any problems. Organizations may encourage voter turnout by reminding voters to vote on Election Day or by answering nonpartisan questions. These activities can include a reminder mailing, notification of poll sites, or phone calls or messages to voters reminding them of their poll sites or to vote. III. Voter Rights and Assistance on Election Day A. Limited English Proficiency Citizens who are limited English proficient may be entitled to assistance. In New Jersey, Korean language assistance is required in Bergen County. This assistance is usually targeted at particular poll sites with the largest number of Korean-speaking voters. If targeted, the poll site will have interpreters and translated signs and materials, including ballots, in various languages. Under federal law, voters who cannot read English can always bring someone to assist them. 18 These individuals can be friends, family members, or neighbors, but not the voters employer or union representative. The assistor can enter the voting booth with the voter to translate the ballot for the voter, but only if the voter requests. New Jersey requires that before assistance can be rendered, the voter must take an oath that he or she requires assistance. The assistor is required to not disclose the voter s choice Rev. Rul , I.R.B et seq. 17 Rev. Rul , I.R.B U.S.C. 1973aa-6 19 Appendix I, N.J. Stat. Ann. 19:50-3 4

5 B. Missing Names The list of registered voters at poll sites often has mistakes. Sometimes the voter s name is missing or Asian names are inverted, so that last names appear as first names. When the voter arrives at the poll site to vote and his or her name is missing or cannot be found, the voter should first ask that his or her name be looked up by first name or middle name. The voter may also be directed to a different precinct within the poll site. Voters should vote at their assigned precincts and poll sites. If the voters find names missing from the voter rolls, they should vote by provisional ballots. 20 An eligible registered voter should not be denied the right to vote. Voting by provisional ballot requires that the voter take an oath stating that he or she is eligible to vote (i.e., a citizen and over 18 years old), live in the jurisdiction, and is registered to vote but some deficiencies prevent him or her from voting. These provisional ballots are not automatically counted, but are held until after confirmation of the voter s registration. After Election Day, the voter must provide proof of his or her registration and/or eligibility to vote. The copy of the voter s registration form from an earlier voter registration drive will help prove eligibility. After the voter s registration is confirmed, his or her provisional ballot is counted. After the election, a New Jersey resident must have access to a statewide voter registration effort and to a free-access system (1-877-NJVOTER) to determine whether his or her vote was accepted and, if not, the reason for its rejection. 21 If the vote was not counted, the provisional ballot affirmation statement will be considered an application to register for the next election. 22 The individual will be notified by the County Commissioner of Registration whether his or her application is accepted. Contact AALDEF if a voter was denied the right to vote or if the voter completed a provisional ballot in order to vote. C. Other Assistance When voting, the voter may bring campaign literature, such as translated instructions or materials showing the name of the candidate for whom they want to vote, if they need the literature in order to help them vote. For more information contact, AALDEF 99 Hudson Street, 12 th Floor New York, NY (212) votingrights@aaldef.org 20 HAVA 302, Pub. L. No , Title III, 302, 116 Stat (codified at 42 U.S.C.A et seq.) 21 N.J. Stat :31(b)(6), 19: N.J. Stat :31(b)(6), 19:61-4 5