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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
Wednesday, October 4
 
Court Order for Naturalized Citizen Voters
At a hearing in Cleveland this afternoon, U.S. District Judge Christopher Boyko granted a permanent injunction against an Ohio statute that required naturalized citizens to produce a certificate of naturalization at the polls if their eligibility to vote is challenged. The AP has this report and the order from Judge Boyko is here. The case is Boustani v. Blackwell, which I've previously discussed in this post. (Disclosure: I'm one of the attorneys for the plaintiffs in this case).

This morning's Cleveland Plain Dealer had this editorial on the case, entitled "Accenting Discrimination." Here's an excerpt:
One of the most stunningly backwards laws this state has passed in recent memory is to be contested in federal court today. It's an overtly discriminatory law that supporters claim would reduce voter fraud, but in actuality would at least harass -- and at worst disenfranchise -- naturalized American citizens.

Ohio voters must show proof of identity in order to vote in November's general election. But naturalized citizens face a much greater burden: If a poll worker asks, they must produce their citizenship papers. Those who cannot do so on the spot will vote by provisional ballot and must bring their citizenship papers to the Board of Elections within 10 days for that ballot to count....

[S]ince the case isn't likely to be resolved by Election Day, [plaintiffs are] asking today for an injunction to keep it from being enforced this November. Judge Christopher A. Boyko should give it to them.
Secretary of State Ken Blackwell agreed, as set forth in this Plain Dealer report noting that Blackwell's lawyers filed papers saying that he didn't oppose the issuance of a preliminary injunction. The Secretary of State's hearing brief is here and his proposed directive is here.

At today's hearing, Judge Boyko ordered an injunction issued against the portion of the statute that treats naturalized citizens differently from native-born citizens, for purposes of challenges to their eligibility. He concluded that the law discriminates based on national origin with respect to the fundamental right to vote, thus warranting the most stringent constitutional scrutiny. In so doing, Judge Boyko spoke eloquently about the dangers of "profiling" at the polling place, observing that naturalized citizens shouldn't be treated as "second-class" Americans when it comes to the fundamental right to vote.

Though I'm obviously biased, I think Judge Boyko's observations were right on target. And for all the criticism that Secretary of State Blackwell received for his actions during the 2004 election, he deserves credit for doing the right thing in this case.

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Moritz College of Law The Ohio State University