The Continued Fight for Voting Rights in Ohio by Paul Moke

Paul Moke is a Professor at Wilmington College of Ohio and has been an active participant in past cases on behalf of the ACLU

As the 2012 presidential election approaches, voting rights litigation in Ohio is heating up. Last month two Republican leaders in the Ohio General Assembly, Senator Thomas Niehaus and Representative Louis Blessing, Jr., filed a lawsuit in the Ohio Supreme Court against Secretary of State Jon Husted. The lawsuit seeks to rescind several directives from Ohio Secretary of State to county boards of election concerning rules for the counting provisional ballots, votes cast by persons whose names allegedly are not on the list of qualified voters. The rules arise from a consent decree in an earlier lawsuit, Northeast Coalition of the Homeless v. Bruner, and generated both controversy and litigation in a disputed 2010 Hamilton County juvenile judge election.

On May 10, U.S. District Judge Algenon Marbley issued an order enjoining Niehaus and Blessing from pursuing their lawsuit. If Niehaus and Blessing ignore the order and obtain a favorable ruling from the Ohio Supreme Court, a major battle between state and federal courts over the validity of the Northeast Coalition consent decree and the constitutionality of Ohio’s rules on provisional ballots could ensue. Although former Ohio Attorney General Jim Petro and former Secretary of State Jennifer Brunner were parties to the consent decree, in his filing with the Ohio Supreme Court Attorney General Mike DeWine is contending that Brunner exceeded her authority in entering into the consent decree and that the decree is not based on a correct interpretation of federal constitutional law. Current Secretary of State Husted appears to agree with DeWine’s position.

While the legal arguments concern the deference that the Ohio Supreme Court must grant to consent decrees issued by federal judges, the broader question involves the disenfranchisement of voters who cast provisional ballots. In the 2010 Hamilton County juvenile judge race, the local board of elections combined up to five precincts together in one voting location, and poll workers misdirected several hundred voters who cast their ballots at the wrong precinct table. The county board of election decided to reject these ballots but then counted other ballots cast improperly at the central board of election office. In Hunter v. Hamilton County Board of Elections, the Democratic candidate challenged this determination, and both the federal appellate court and, on remand, the local district court ruled in her favor. Another related issue concerns the procedures used to establish voter identification at the polls. Under the Northeast Coalition consent decree, voters may present the last four digits of their Social Security Numbers as a means of identifying themselves at the polls. Republicans in the General Assembly are seeking to restrict this option. They believe poll workers have no duty to assist voters in voting at the proper polling location and favor restrictive voter identification laws. In 2011 they passed HB 194, a sweeping set of reforms to Ohio voting laws in order to accomplish these objectives. A coalition of voting rights groups assisted Fair Elections Ohio in gathering enough signatures to place a referendum on the fall ballot, seeking repeal of HB 194.

In what is apparently an end-run around the referendum, on May 8, the Ohio General Assembly itself voted to repeal HB 194, and Governor Kasich is widely expected to sign the new legislation. The timing of Kasich’s signature repealing HB 194 may render the Niehaus case moot. But that will be up to the Ohio Supreme Court to determine.

The furious action in Columbus involving voting rights may be opening stages of a two-pronged Republican strategy to suppress voting turn out in the fall. The first prong involves the Republican dominated General Assembly passing restrictive new election laws that will take effect in time for the upcoming election, thus depriving opponents of sufficient time to organize a referendum campaign. In the second prong, the Ohio Supreme Court action can serve either directly or indirectly as the basis for an appeal to the Sixth Circuit or the U.S. Supreme Court in an effort to undermine the constitutional basis for the federal consent decree in the Northeast Coalition case.

In the meantime, the legal battle between the State of Ohio and the federal courts over provisional ballots may place Secretary of State Husted in an uncomfortable dilemma as he chooses whether to comply with the Northeast Coalition consent decree or a contrary order from the Supreme Court of Ohio. As was the situation in 2008, when federal courts resolved five major challenges to Ohio voting rights laws in the six month period leading up to the fall election, this year promises to be a challenge for those seeking to preserve the integrity of voting rights in the Buckeye State.