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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
Tuesday, October 24
Ohio Voter ID Lawsuit
The Northeast Ohio Coalition for the Homeless and Service Employees International Union Local 1199 today filed a lawsuit in U.S. District Court for the Southern District of Ohio (Northeast Ohio Coalition for the Homeless v. Blackwell). The AP has this report.

The complaint alleges that various parts of Ohio Substitute House Bill 3 (HB 3), enacted earlier this year, are "confusing, vague and impossible to apply." It further asserts that parts of this bill impose an "unequal and undue burden" on the right to vote. The complaint includes claims under the Equal Protection Clause and Due Process Clause of the U.S. Constitution, as well as the Civil Rights Act of 1964.

The main thrust of the lawsuit appears to be a challenge to inconsistencies in how HB 3 is being applied within different Ohio counties. In particular, plaintiffs identify several portions of the new law that, they allege, are being applied differently within different Ohio counties. Here are some of the inter-county disparities alleged:

- One acceptable form of identification is a "current" utility bill, bank statement, or other document. Plaintiffs allege that Ohio law doesn't define the term "current" and that different counties are applying different rules for ascertaining whether the documents presented are acceptable.

- That same provision also refers to "other government document[s]" that suffice to meet the identification requirement. Plaintiffs allege that county boards of election are applying different standards for determining what this term includes. For example, Cuyahoga County allegedly will accept any type of document from any U.S., city, state, or county government entity, while other counties only accept state or federal documents.

- Absentee voters aren't required to provide documentary ID, but may instead provide their driver's license number. The complaint notes that there are actually two different numbers on Ohio driver's licenses -- one larger number appearing over the driver's photo, and another smaller number buried on the left-hand side. Mahoning County is allegedly rejecting absentee ballots that have only the first number, while Cuyahoga will count those ballots.

- Under HB 3, military ID is an acceptable form of identification if it shows the voter's name and "current address." The complaint alleges that at least some military ID cards don't contain the holder's address. Mahoning and Trumbull Counties are allegedly rejecting military ID cards without the voter's current address, while Cuyahoga accepts them.

The complaint goes on to assert that the Secretary of State's office has failed to provide adequate guidance to county boards of elections, and that the guidance that has been issued has "cause[d] more rather than less confusion" on some issues. In addition, plaintiffs note the different identification requirements applicable to absentee and election-day voters. While absentee voters need only provide their driver's license or the last four digits of their Social Security number, election-day voters must present some form of documentary identification to cast a regular ballot.

One of the peculiarities of Ohio law noted in the complaint is its treatment of election-day voters who do not have documentary ID, but are willing to provide the last four digiits of their Social Security number. According to the complaint, the relevant provisions of HB 3 (Ohio Rev. Code sections 3505.18 and 3505.181) don't allow those voters to cast either a regular or a provisional ballot.

Another issue raised in the complaint is the lack of uniform standards and procedures for the counting of provisional ballots. HB 3 does say that boards of elections are supposed to examine their records in determining whether voters are eligible and registered to vote. According to plaintiffs, however, the law doesn't provide sufficient guidance on what records should be checked or on what procedures should be followed in assessing the qualifications of provisional voters.

As this summary reveals, the claims made in the complaint are extremely complex and fact-specific. There are a total of thirteen counts in the complaint, but the main legal bases for the claims are: (1) the Due Process Clause of the Fourteenth Amendment, (2) the Equal Protection Clause of the Fourteenth Amendment, (3) the Twenty-Fourth Amendment's prohibition on poll taxes; and (4) the Civil Rights Act of 1964.

Plaintiffs' motion for a temporary restraining order reveals that their equal protection argument rests in part on the Supreme Court's 2000 opinion in Bush v. Gore. In that case, the Court found that the lack of adequate standards for Florida's court-ordered recount violated the Equal Protection Clause. A part of the evidence in support of these claims was that different counties were applying different rules for determining which punch-card ballots should be counted. Citing Bush v. Gore, plaintiffs in NEOCH v. Blackwell argue that inter-county differences in the implementation of voter ID rules are comparable to the unequal treatment identified in Bush v. Gore.

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Moritz College of Law The Ohio State University