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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
Thursday, October 26
Today's Voter ID Hearing in Ohio
As noted here, the challenge to the implementation of Ohio's voter ID requirements filed earlier this week has been reassigned from Judge Gregory Frost to Judge Algenon Marbley. A hearing on plaintiffs' motion for a temporary restraining order in NEOCH v. Blackwell is scheduled for 2:30 this afternoon in Columbus. I've read the briefs filed by both sides on the TRO motion, and offer these thoughts.

As noted in my previous description of this case, the main claims in this case focus on discrepancies in the way that Ohio's identification requirements are being applied from county to county, as to both in-person and absentee voters. Plaintiffs' argue that this is problematic on both due process and equal protection grounds. In particular, they claim that the vagueness in the law that the Ohio legislature passed earlier this year (HB 3) has resulted in different interpretations of the law from county to county. They also claim that the inter-county inequalities in the application of voter ID rules violates equal protection.

To the extent that these claims are backed up with evidence, there's a strong argument that the discretion vested in county officials violates the Equal Protection Clause, for reasons similar to those upon which the Supreme Court relied in Bush v. Gore. In that case, the Court concluded that the different recount standards being applied from county to county -- and sometimes even within a single county -- resulted in the "uneven treatment" of voters. As the Court put it: "This is not a process with sufficient guarantees of equal treatment." The same can be said of what's alleged to be going on with Ohio's voter ID rules. Of course, the Court famously avoided saying how this principle would apply to future cases, noting that "the problem of equal protection in election processes generally presents many complexities." It nevertheless seems difficult to draw a principled distinction between the uneven treatment struck down in Bush and that alleged to be occurring in Ohio.

Interestingly, the State's opposition to the TRO does not deny the inter-county variations that plaintiffs allege, and makes no effort to draw any principled distinction between this case and Bush. Instead, the State relies on last Friday's opinion in Purcell v. Gonzalez to argue against last-minute injunctions to election rules. But Purcell does not establish a blanket bar to such injunctions. Instead, the Court recognized that late-issued injunctions can sometimes cause more problems than they solve.

While the Purcell opinion was not written with the care for which we'd hope, the Court seemed particularly troubled by the fact that the Ninth Circuit issued an injunction without any explanation of it's failure to defer to the district court's factual findings -- especially those relating to the balance of harms and public interest. This aspect would have no relevance, if Judge Marbley were to find that the disruption being caused by the new rules is greater than the disruption that would flow from an injunction. In fact, Purcell's reminder about deference to district judge's factual findings would counsel strongly against appellate reversal of any injunction issued with such findings supporting it.

Moreover, as a reader pointed out to me after this blog post on Purcell, the Arizona ID rules had actually been implemented in the September 12 primary election. It is not hard to see why confusion would result, when a state goes from one ID rule to another, and is then compelled to return to the prior rule under a court order. Whether or not one views such an order as restoring the status quo ante (a question recently debated on the Election Law Listserv), this sequence of events could well prove confusing to election officials, poll workers, and voters alike. By contrast, Ohio's new ID rules have not yet been implemented on a statewide basis. Accordingly, the disruption from an injunction is likely to be less than was involved in Arizona.

The State's TRO brief also points out that the voter ID rules at issue became effective back in June, yet plaintiffs waited until October to bring a challenge. This argument would carry considerable force ... if plaintiffs' claims were based on a facial challenge to the law. While there are parts of the complaint that read as though plaintiffs were challenging the HB 3 on its face, my reading of the complaint and TRO is that the predominant focus is on how the new ID rules are being applied. The inter-county discrepancies upon which plaintiffs principally focus did not arise on the law's effective date, but only when it became apparent that counties were applying these rules in significantly different ways.

Another argument made by the State -- one that is in tension with their argument that plaintiffs waited too long to file -- is that the claimed harms are "purely speculative." That is not true, however, if there really are significant inter-county variations in how the ID rules are being applied. In fact, plaintiffs assert that the harms have already begun to take place, given that many Ohioans have now cast absentee ballots that won't be counted under some counties interpretation of the new rules. The harm to voters is not speculative even if, as in Bush v. Gore, it's not possible to identify precisely which voters are subject to having their votes rejected. Although defendant's brief suggests the possibility of post-election litigation solving the problem, it's vastly preferable to clarify the rules in advance of the election, as I've argued here.

The State's brief thus fails to present strong arguments, either on the merits or on the equities, for denying a TRO. The difficult problem is figuring out whether there's some relief that can address plaintiffs' claims while minimizing disruption to the state's election system. Plaintiffs' proposed order doesn't yet appear on the court's electronic filing system, so I can't tell exactly what relief they're seeking. What would appear to make most sense is to return to the status quo ante, by allowing them to cast a ballot without ID, unless they'd be required to do so as a matter of prior (i.e., pre-HB 3) federal or state law.

Assuming that plaintiffs are found to have a strong case on the merits, it will ultimately be for the district court to determine whether it's possible to craft relief that will reduce confusion rather than exacerbating disruption. This will require a delicate sifting of the balance of equities by the district court. The lesson from Purcell should not be that injunctions should always be denied in these circumstances, but rather that appellate courts should generally defer to district courts' discretion in weighing these competing considerations.

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