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Election Law @ Moritz

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Only in Ohio

In a Simpsons episode, Homer Simpson experiences problems with the voting machine and exclaims: “This doesn’t happen in America! Maybe Ohio, but not in America.” My 62 hour saga of trying to get Ohio election officials to accept my properly cast absentee ballot is almost as entertaining as a Simpsons episode. Unfortunately, my story is true. A 1997 clerk-typist error in recording my birth date – which I corrected a decade ago – caused Brian Shinn, the Assistant General Counsel for the Ohio Secretary of State, to declare my absentee ballot “void.” After dozens of hours of advocacy over three days, I finally convinced local officials to accept my ballot. Slavish adherence to hypertechnicality does not protect against voter fraud, wastes the time of voters and election workers, and undermines the public’s confidence in the voting system. These rules must be changed in Ohio and elsewhere.

Here’s my Simpsons episode.

I moved to Ohio in 1997 and registered to vote under the Motor Voter laws. Unnoticed by me, a clerk erroneously typed my birth date as 1958 instead of 1956 on the applicable form. I discovered that error a year later and took my birth certificate to the Bureau of Motor Vehicles (“BMV”), which corrected its records. I was unaware that BMV would not send that correction to the Board of Elections.

Meanwhile, I voted without any difficulty in person or by absentee ballot in nearly every election held in the state of Ohio from 1997 to March 2008. In the fall of 2008, I completed an application for an absentee ballot for the November election and, upon receiving that ballot, completed and mailed it to the Franklin County Board of Elections.

On the morning of October 29, I checked the Board of Elections website to check the status of my ballot and learned that it was not listed as “received.” Concerned that my ballot had been lost in the mail, I immediately called the Board of Elections and spoke to an election worker who said: “What’s your birth date? Ballots are often not shown as received because of birth date errors.” She then found my individual ballot and confirmed that it had arrived at their office but was not recorded as received due to a birth date discrepancy. She told me not to worry, that there was another layer of screening and my ballot would probably be accepted.

I then checked the rules for handling absentee ballots. I learned that Ohio law permits a board of elections to reject an absentee ballot application due to a birth date mismatch. In that case, however, the board is required to notify the voter and provide an opportunity to correct the inconsistency. In my case, an election worker did not notice the discrepancy on my application for an absentee ballot. Instead, an employee caught the mismatch only after the board received my absentee ballot. Under Ohio law, that inconsistency was not a basis for failing to accept a ballot, so long as, like my ballot, it contained the voter’s signature, address, and last four digits of his or her Social Security number.

Because I concluded that Franklin County was not following Ohio law by failing to accept my ballot automatically, I contacted both the Secretary of State and the Franklin County Board of Elections to correct the error. I did not want subjectivity and human error to cause some ballots with mismatched birth dates not to be counted.

On October 30, after two days of haggling with Franklin County and the Secretary of State, I received a letter from Assistant General Counsel, Brian Shinn, who declared that my “ballot is void” because the “birth date that you listed on your absentee ballot request did not match the birth date in the records of the board of elections.” Shinn urged me to work with Franklin County to find a way to vote in the November election.

On the morning of Friday, October 31, Michael Stinziano, Director of the Franklin County Board of Elections, called to tell me that he found Shinn’s letter “persuasive.” I argued that Shinn was incorrectly interpreting Ohio law and Stinziano said he would get back to me later that day after receiving a copy of my birth certificate.

At 10:30 p.m. on Friday, October 31, I received an email from Stinziano saying that my ballot would “be processed as part of the unofficial count because no fraudulent intent existed and you have in fact updated the records with the BMV many years ago.” Sixty-two hours after I first called the Board of Elections, I succeeded in having my properly cast absentee ballot placed in the “accepted” category to be opened and counted on election day. Few voters have the time or resources to engage in such efforts to have their vote counted.

This kind of pointless obsession with birth date mismatches at the absentee ballot voting stage needs to end. All it does is undermine voter confidence. One mother told me that her daughter got her Ohio driver’s license a few days ago and was surprised to learn, when she got home, that her birth date was listed as 1978 rather than 1990! Her daughter had no idea that, after she corrected the record, she could be precluded from voting by absentee ballot under Shinn’s view more than ten years from now.

I hope, in the future, that we can say “this doesn’t happen in America. Not even in Ohio.”


Daniel P. Tokaji

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