Ohio Equal Voting Case Survives
U.S. District Judge James Carr has denied a motion to dismiss a lawsuit filed by the League of Women Voters of Ohio and others, challenging the State of Ohio's administration of its voting system under the Fourteenth Amendment. The order, filed yesterday, may be found here. The League's lawsuit arises from problems with registration, the handling of provisional and absentee ballots, disability access, and the allocation of voting machines in Ohio, which they claim are of longstanding duration.

The most important aspect of Judge Carr's ruling is his conclusion that the League and other plaintiffs have stated claims under the Equal Protection Clause, based on the alleged disparate treatment of voters in different counties. He properly recognizes that the state "misconstrues the complaint" in asserting that voters should try to resolve their problems with local election officials (a point I made here in an earlier post, which contains a more detailed description of the case). The whole point is that voters across jurisdictions have been afforded unequal treatment, resulting in a "crazy-quilt" of different rules and processes.

The court also allows plaintiffs' due process claim to proceed, on the theory that Secretary of State Blackwell and Governor Taft may be liable for the "systemic failure to train." It specifically rejects the arguments that Taft and Blackwell aren't proper defendants, that plaintiffs lack standing, that their claims are precluded by the judgments in prior lawsuits, and that the case should be transferred to another court.

Judge Carr's order does dismiss plaintiff's claim challenging the state's registration list under the Help America Vote Act. The order reasons that this statewide list need not be implemented until January 1, 2006. (See this post for more on HAVA's deadline.) In effect, Judge Carr finds that the HAVA claim isn't yet "ripe," although he doesn't actually use this term.

My take: On the whole, I think Judge Carr's order is right on target. He properly recognizes that the state has attempted to avoid the main thrust of plaintiffs' complaint: that the Governor's and Secretary of State's office have abdicated their responsibility to assure equal treatment of voters throughout the state. If indeed the evidence shows such lack of uniformity, then it should be found to violate equal protection under Bush v. Gore and other cases that require equal treatment for voters in different jurisdictions within a state. This doesn't necessarily mean that plaintiffs will win. It does mean that their complaint should be allowed to proceed.

My only disagreement with the court's order concerns the HAVA claim. While it's true that HAVA's state registration list deadline is January 1, 2006, that date is almost upon it. Therefore, if plaintiffs' allegations are assumed true -- as they should be at this stage -- then a violation of HAVA is "imminent." This is sufficient to make their claim ripe, and to give the plaintiffs' standing to challenge the impending violation. This is a small point, however, since the order as I read it would leave the League free to amend its complaint less than a month from now, after HAVA's deadline has passed. - posted by Dan Tokaji @ 1:13 PM