Dan Tokaji's Blog
- Election Law Blog (Rick Hasen)
- Election Updates (Michael Alvarez & Thad Hall)
- Votelaw Blog (Ed Still)
- Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio State Law Journal 1065 (2007)
- The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 South Carolina Law Review 689 (2006)
- Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 George Washington Law Review 1206 (2005)
Making Sense of Ohio's New ID Law
Last week, the Ohio legislature passed and the Governor signed a massive election bill (Sub HB 3), which significant changes in such areas as voter registration, provisional voting, challenges to voter eligibility, election contests, and the identification that voters must show at the polls. Unlike the laws that Georgia and Indiana have enacted, Ohio's law does not require government-issued photo identification. That's very good news for Ohio voters, since such photo ID laws impose a major burden on those who don't have photo ID -- a disproportionate number of which people have disabilities, are elderly, live in poverty, and are people of color.
The bad news is that, like many other features of Ohio's new law, the new requirements on ID and provisional ballots are very complicated. This will make implementation challenging, especially for the state's many poll workers, upon whom the functioning of the system depends. Most of these dedicated folks, I'd venture to guess, are not lawyers. Figuring out the detailed rules of how different voters are supposed to be treated, however, is something that almost requires a law degree -- indeed, I have one, have struggled with this bill for hours, and confess that I'm not completely sure I understand even the requirements on ID and provisionals.
Implementation will also be an enormous challenge for election officials and boards of elections, which will be charged, at the end of the day, with figuring out how to count all the additional provisional ballots that are likely to be cast. And if this law is actually followed, we can expect many more provisional ballots than in prior years. (I say "if" because I think that, given the complexity of the new rules, I think it's quite possible that some will throw up their hands when in doubt, and process voters and their ballots as they always have.) I make the prediction of more provisionals, because the new bill channels many voters who would previously have cast regular ballots into the provisional ballot pathway.
The ID requirement is one example of this. Here's my quick and probably oversimplified understanding of Ohio's new ID requirement, including the parts of the law having to do with the counting of provisionals for those who don't have the required ID when they come to the polls:
For those interested in checking my work, which I'd appreciate, the relevant provisions can be found at sections 3505.18 - 3505.183 of the new law.
1. Voters may cast a REGULAR (i.e., non-provisional) ballot if they show:
a. current and valid government-issued photo ID, or
b. a military ID with name and current address, or
c. a utility bill, bank statement, paycheck, government check, or other government document showing the voter's name and current addresss.
If you've got one of the above, you're golden -- and you should insist on casting a REGULAR ballot when you go to the polls. All others cast PROVISIONAL ballots.
2. For those who lack the required forms of ID when they come to the polls, here are the basic rules on whether their provisional ballots count:
a. Voters who know their social security number (SSN) can provide the last four numbers of it, in which case the provisionals should be counted (as far as I can tell, there's no matching required). If they don't know their SSN when they appear at the polls, they can provide the last four numbers within 10 days and have their provisional ballots counted.
b. Voters who possess one of the allowed forms of ID, but don't have it with them on election day must bring it in (or provide the last four digits of their SSN) within 10 days, to have their provisional ballots counted.
c. There's an affidavit exception for voters who have none of the required ID or SSN. That means they can cast a provisional ballot if they sign a statement under oath verifying their identity, address, eligibility, etc. And as I understand the law, those votes should be counted unless there's some discrepancy.
While I emphasize that this is an oversimplification, the bottom line for voters is that no one should be discouraged from showing up to the vote because of the ID requirement. Those that don't have a driver's license can show a utility bill or other document -- basically those that were allowed under HAVA for first-time voters who registered by mail. And those who don't have any of those documents can still cast a provisional ballot, which should be counted, either by providing the last four numbers of their SSN or if they don't have that, by signing an affidavit. So in theory, no one should be denied their vote because they lack ID. What worries me is that some poll workers won't understand the rules, or that there won't be fair or equal treatment of provisional ballots across the state.
(P.S. If anyone thinks I've gotten any of this wrong, please email me.)
Correction: After my last post, a couple of readers called my attention to section 3501.01 of the new law, which provides:
(AA) "Photo identification" means a document that meets each of the following requirements:What that means, contrary to what I previously thought, is that employee or student ID's probably won't work. The only way they'd suffice is if they show the voter's current address and were issued by the U.S. or Ohio government. I've therefore corrected my prior post to specify that the photo ID must be issued by the government.
(1) It shows the name of the individual to whom it was issued, which shall conform to the name in the poll list or signature pollbook.
(2) It shows the current address of the individual to whom it was issued, which shall conform to the address in the poll list or signature pollbook, except for a driver's license or a state identification card issued under section 4507.50 of the Revised Code, which may show either the current or former address of the individual to whom it was issued, regardless of whether that address conforms to the address in the poll list or signature pollbook.
(3) It shows a photograph of the individual to whom it was issued.
(4) It includes an expiration date that has not passed.
(5) It was issued by the government of the United States or this state.
If I were a student activist at a state university in Ohio, I'd think about lobbying my school to include addresses on student ID cards so they fall within the scope of the law (assuming they don't already, which I suspect is probably the case).
Thanks for the correction!