Dan Tokaji's Blog
Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Saturday, October 29
 
Ohio Gov Signs No-Fault Absentee Bill
Ohio Governor Bob Taft has signed a bill allowing voters to receive and vote mail-in absentee ballots, whether or not they have an excuse for not voting in person. The A.P. has this report on the bill (H.B. 234), and my prior thoughts on this bill may be found here. An important feature of this new law is that it requires voters to presents some form of identification -- although not necessarily photo identification -- in order to cast their votes. More specifically, it allows voters to provide the other forms of identifying information allowed by the Help America Vote Act (including such things as a utility bill and the last four digits of one's social security number) . The bill is therefore much less restrictive than photo ID bills recently enacted by Georgia and Indiana. While a substantial percentage of elderly, disabled, poor and minority voters lack state-issued photo ID, more people will have one of the alternative forms of identifying information allowed in Ohio.

As the Toledo Blade reported here, Democrats are asserting that the Republican-dominated state-legislature enacted this bill in order to take the wind out of the sales of Issue 2, a measure that's on the November 8 ballot. Like the legislation just signed by the Governor, Issue 2 would institute no-fault absentee absentee. But unlike the just-passed legislation, Issue 2 doesn't require voters to provide identifying information. Because Issue 2 is a constitutional amendment, its provisions would presumably control if there's a conflict between its requirements and those of the law passed by the state legislature.

My take: Is no-fault absentee a good idea? While I generally think that concerns about voting fraud are considerably overblown, mail-in voting fraud is the one area of our election system where it's genuinely difficult to police fraud. Put simply, not too many people go to the polls pretending to be someone they're not -- it's a high risk, low reward strategy. But there have in the past been some attempts to manipulate mail-in ballots, especially in smaller local elections.

It's therefore ironic that some of the same conservatives who have been railing against fraud in hopes of enacting an exclusionary ID requirement are now seeking to expand no-fault absentee voting. This anomoly was in fact one of the things that led a Georgia federal court to strike down that state's photo ID requirement for those who vote at the polls. In Ohio, the legislature has imposed a modest identification requirement, but it's not likely to do much good. That's because the problem with mail-in voting is that it allows someone other than the voter to see (or even vote) the voter's ballot. This gives rise to the possibility of vote-selling -- something that's just not possible with in-person voting -- and isn't mitigated by requiring voters to provide identifying information with their ballots. Also, there's some evidence that those who vote by mail make more mistakes, and are therefore less likely to have their votes counted than in-person voters. The new Ohio law's requirement will thus pose an impediment to voting, albeit a modest one, without appreciably enhancing ballot security.

The goal of making voting more convenient is a worthy one, but a much better way to go about achieving this objective is to institute in-person early voting. This would be allowed, but not required, by Issue 2. Such a measure would expand access without sacrificing integrity.

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Moritz College of Law The Ohio State University