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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, November 1
Consent Order in Ohio Voter ID Case
As the Ohio News Network reports here, a consent order has been entered in the litigation challenging the implementation of the state's voter identification requirements. The consent order signed late tonight appears to resolve the rather convoluted ID issues that have emerged in Ohio during the past several days.

Such a settlement was desperately needed, after an order and subsequent opinion from the Sixth Circuit that left considerable confusion over what ID would and wouldn't be acceptable in the state's November 7 election. The Sixth Circuit stayed a TRO issued by U.S. District Judge Marbley, which had stopped the ID rules from being applied to absentee voters. The Columbus Dispatch reported here on the frustration that election officials were experiencing after the Sixth Circuit's action.

One of the big issues left up in the air after the Sixth Circuit's ruling was what would happen to absentee ballots cast without identifying information under the protection of the TRO. As the Sixth Circuit's opinion noted, these absentee voters have due process and equal protection rights. In fact, voters may well have believed (or even been instructed) that they were allowed to vote absentee ballots without identifying information even after the TRO was stayed by the Sixth Circuit, since the Secretary of State's directive (2006-79) implementing the TRO's requirements doesn't appear to have been lifted.

The consent order appears to resolve the absentee ballot ID issue, at least for this election. It provides that absentee ballots are to be counted "if that ballot has the voter's name, address, date of birth, and signature," even if they don't include a driver's license number, last four digits of the the Social Security number, or other forms of identifying information. This is, in my opinion, a fair resolution of the issue since it will protect voters who didn't provide the form of ID required by the statute -- including those who were understandably confused by the rules or who cast absentee ballots while the TRO was in effect. At the same time, it provides a relatively straightforward rule for county election officials to follow.

The consent order also deals with the ID that voters will have to show at the polls on election day. It provides, among other things, that utility bills, bank statements, and other forms of non-photo documentary ID are "current" if dated one year or less from the date presented to the county board. (Those documents must have the voter's current address on them.) Voters who don't have or are unable to provide one of the specified forms of photo or non-photo ID may provide their Social Security number and cast a provisional ballot, which should be counted if they're determined qualified and registered.

Another important provision of the consent order has to do with military ID. The problem here is that Ohio's law allows military ID only if it contains the voter's current address, but many (if not most) military IDs don't have an address on them. Under the consent order, voters with military ID that doesn't show their current address, but does have their Social Security number, may provide the last four digits of that number. They will be allowed to cast provisional ballots that should be counted, if they're qualified and registered.

There's more to the consent order, but what's most important is that the plaintiffs and Ohio officials have arrived at an agreement that should resolve most if not all of the confusion attending the implemention of the state's ID requirements in this election. The parties and Judge Marbley deserve credit for making this happen.

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Moritz College of Law The Ohio State University