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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
Saturday, October 28
 
Stay Application in Ohio ID Case
The Ohio Attorney General's office has filed this emergency motion for a stay in NEOCH v. Blackwell, the case in which Judge Marbley on Thursday issued a TRO against the identification requirements for absentee voters. Plaintiffs have been ordered to file a responsive brief by 5:00 pm today. Here are my initial reactions to the State's brief:

- The Attorney General has filed this brief against the wishes of his nominal client, Secretary of State Ken Blackwell, claiming "separate litigation authority" to defend the State of Ohio and its officers (p. 1, fn. 1). While I don't doubt that this is true, the party on whose behalf this brief is filed is not, precisely speaking, the State of Ohio or its General Assembly but rather the Secretary of State -- or even more precisely, the office of the Secretary of State, since this is an official capacity suit. This is effectively acknowledged in the State of Ohio's motion to intervene, also filed by the Attorney General's office and denied yesterday, which asserted that the interests of the State of Ohio (including the General Assembly which passed HB 3) differ from those of the Secretary of State. If that's true, then it seems odd for the Attorney General to be filing a stay application on behalf of the Secretary of State's office, which has a contrary position. It also seems to me (and on this point I emphasize "seems") that the Attorney General's office has a conflict between representing the interests of the Secretary of State on the one hand and the General Assembly on the other. Although the stay application asserts the Attorney General's authority to appeal the TRO "in the Secretary of State's name" (p. 9), apparently even against his wishes, the Attorney General cites no authority for this proposition.

- The Attorney General's brief relies heavily on the Supreme Court's ruling in Purcell v. Gonzalez and, specifically, on its statement that pre-election court orders "can result in voter confusion and consequent incentive to stay away from the polls" (quoted on p. 14). The key word here, however, is "can." The Court was undoubtedly right to say that pre-election court orders can result in confusion; but it did not say that such orders always create more confusion than they dispel. In this case, plaintiffs' main argument is that the new ID rules in Ohio have themselves generated considerable confusion, which the actions of the Secretary of State have failed to alleviate, resulting in different standards being applied from county to county.

- The Attorney General's brief disregard's Purcell's emphasis on deference to the discretion of the district court in weighing such competing harms. Even though the district court in Purcell didn't make factual findings until a month after its ruling, the Supreme Court still concluded: "It was still necessary, as a procedural matter, for the Court of Appeals to give deference to the discretion of the District Court." What the Attorney General doesn't explain is why such deference isn't also owed here, both on the equities and on the merits, especially given the fact-specific nature of plaintiffs' claims.

- For similar reasons, the Attorney General's argument that plaintiffs sat on their hands for too long doesn't carry much force in this case. Although Judge Marbley found the ID provisions for absentee voters unconstitutional both on their face and as applied, the main problem upon which the TRO motion focused was the confusion and inequality attending application of these rules across the counties. The most significant example of this is the confusion for both voters and election officials, resulting from the fact that Ohio driver's licenses actually have two different numbers on them, as depicted here. A significant number of voters -- 5% according to Franklin County's election officials -- have included the larger "photo number" rather than the smaller "license number" on the driver's license, which will result in their ballots being rejected under the rule being applied in some (but allegedly not all) counties.

- The Attorney General correctly notes that voters who ask for an absentee ballot but don't receive it are allowed to cast a provisional ballot under Ohio law. ORC 3509.09. But this doesn't solve the dual number problem. That's because many voters who cast absentee voters without the "correct" number, according to their county's interpretation of the law, won't know that their absentee ballots haven't been counted.

- The Attorney General also relies heavily on a directive that the Secretary of State issued on Thursday (2006-78), saying that the smaller number is the only proper number. This might be a satisfactory answer to plaintiffs' equal protection concerns, if this guidance had been provided in advance of any voters applying for or casting absentee ballots. Under those circumstances, both counties and voters could have been informed of the rules sufficiently in advance of the election. But in reality, many voters already cast absentee ballots before this directive was issued. The Secretary of State's late-issued guidance doesn't help those voters; it only makes things worse for them. Moreover, there will probably be a lot of absentee voters -- I daresay a majority -- who aren't closely following these proceedings won't be clear on which number to include, even after the issue is finally resolved.

- At one point in the Attorney General's brief, it refers to the competing harms from the implementation (or non-implementation) of the ID requirements "at the polls" (p. 15). But the ID requirements for voting at the polls on Election Day aren't affected by the TRO that Judge Marbley issued, which is limited to the ID requirements for absentee voting. The polling places rules will presumably be addressed at the preliminary injunction hearing set for next week. The Attorney General can't pre-emptively appeal a ruling on polling place ID that the district court hasn't made. This would deny the district court the discretion to weigh the evidence, including the competing harms that would arise from granting or denying an injunction, which the Purcell Court thought to be essential.

- Toward the end of the brief, the Attorney General asserts a willingness to "work[] with the court toward a consent TRO." I take this to be a recognition on the Attorney General's part that there are some serious problems -- particularly for absentee ballots who've already sent in their absentee ballots, for whom provisional voting probably won't do any good since they won't likely know that their votes have been rejected by Election Day. At the very least, any order from the Sixth Circuit reversing the TRO would have to protect those voters who cast absentee ballots without the proper number while the TRO is in effect. As I stated yesterday, any reversal of the TRO is almost certain to exacerbate the confusion, by requiring that different rules be applied to different absentee ballots, depending on when they were mailed. It's hard to see how any alternative TRO would have a lesser disruptive effect than the one Judge Marbley issued.

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Moritz College of Law The Ohio State University