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Commentary

Appellate Opinion in ID Case: No Pre-Voting Remedy Needed

The majority opinion from the U.S. Court of Appeals sends a strong message that the casting of ballots should go forward with Ohio’s new ID requirements in force and that any subsequent claim concerning the disqualification of an-already cast ballot can be handled after the casting of ballots is completed on November 7. The key passage of the majority opinion, in my judgment, is the assertion (at p. 19) that voters “would be irreparably harmed only if any noncomplying ballots were disposed of or destroyed and could not be later counted” and, therefore, that voters “suffer no injury from the continued enforcement of the voter identification requirements to absentee ballots pending a full resolution on the merits.” Consequently, even assuming that a violation of federal law occurs by disqualifying a ballot because of the unequal or arbitrary enforcement of Ohio’s ID law, there is no need for federal court intervention prior to the casting of ballots because afterwards “all absentee ballots can be counted without regard to the identification requirements” (ibid.)—a point made here prior to the district court’s issuance of its TRO last Thursday. This reasoning from the appeals court would appear to apply with equal, or even greater, force to conventional in-precinct ballots as to absentee ballots. Any voter who goes to the polls on November 7 and lacks sufficient ID in the eyes of the poll workers is entitled to cast a provisional ballot. Therefore, if it is ultimately determined that the ID requirement was applied wrongfully to that voter, the voter’s provisional ballot also “can be counted without regard to the identification requirements.” For this reason, if the district court were to prevent poll workers from requiring voters to present ID on November 7 (and from further requiring those voters to cast a provisional ballot if they do not), a new order of this nature would seem in direct derogation of the appellate opinion issued released today. Moreover, the majority opinion sets forth a preliminary hurdle that the plaintiffs must surmount even before they confront this apparently insuperable obstacle to their effort to block complete implementation of Ohio’s ID rules. The preliminary hurdle is known to attorneys as the issue of “standing” and, for the benefit of non-attorneys, it means that any person seeking to stop enforcement of a state law in federal court must show how that law injures that particular person (and not just some one else in society). The majority opinion said that the two groups that filed this lawsuit—an organization that helps homeless persons and a labor union—failed to satisfy this threshold inquiry because they had not shown that any of their members had cast an absentee ballot without proper identification or that they were planning to vote but lacked the kind of ID required by Ohio law. In the court’s words, the plaintiffs’ “allegations fall far short of asserting that any of plaintiffs’ members have suffered or will immediately suffer a concrete, actual injury traceable to enforcement of the voter identification requirements” (p. 17). This “standing” issue is crucial because plaintiffs are not entitled to present the merits of their challenge of the constitutionality of a state law unless they meet this threshold. It is a basic jurisdictional prerequisite to the exercise of federal judicial power, and it cannot be waived or overlooked by any federal court. Consequently, it is understandable that the concurring opinion filed by Judge McKeague admonished the plaintiffs that, at tomorrow’s hearing back in the district court, they had better introduce new evidence to show how the ID law specifically harms some of their members, or else they will be unable to pursue their constitutional claims at all. Even if they meet this threshold hurdle, however, the plaintiffs still face the obstacle described above regarding their request for an order blocking complete enforcement of Ohio’s ID laws: there is no need for an intrusive, ahead-of-time remedy when it is possible to protect any ballot from the wrongful enforcement of the ID rules after it has been cast. The majority's opinion made plain that it was reading the U.S. Supreme Court’s decision of only ten days ago in the Arizona voter ID case, Purcell v. Gonzales, as signaling forcefully that there should be no federal-court disruption of the rules for casting ballots shortly before the time those ballots are to be cast, or especially during the period in which they are being cast in a regime of early or absentee voting, when this kind of disruption is unnecessary to vindicate the alleged voting rights interests at stake. Purcell may have called for appellate deference to district courts in the context of requests for judicial intervention into the operation of a state’s electoral process, but that deference is warranted—at least in the Sixth Circuit’s view—only when the district court itself is sufficiently respectful of the state’s valid interest in the “smooth and effective of administrative of voting laws” (p.20). Citing Purcell, the appeals court in the Ohio case summed up its decision this way: “The TRO issued by the district court needlessly creates disorder in electoral processes, without any concomitant benefit to the public” (p.20). The appeals court, however, expressed hope that the parties to the case would reach a negotiated agreement that would avoid the need for any further judicial proceedings on the constitutionality of the ID rules. On this point, even the dissenting judge was in complete agreement. The main benefit of an accord of this kind would extend beyond the remaining few days until balloting closes on November 7—after all, the appellate decision appears to leave no room for any federal-court intervention during this period (and therefore not much to negotiate over in this regard)—but rather would remove the impetus for post-balloting disputes that could arise after the polls close next Tuesday. It is quite clear that the appeals court’s decision does not preclude fighting over either absentee or provisional ballots if voters believe their ballots to have been wrongfully disqualified as a result of the ID requirement. There are a variety of such claims that conceivably could emerge after November 7, unless the parties reach an agreement that obviates the need for going to court over the counting of these ballots. Therefore, in the interest of avoiding elections being decided by judicial decree, an interest that all profess to favor, it would benefit the public if the parties could hammer out ahead of time (between now and next Tuesday) a set of clear rules for determining when ballots will—and will not—be counted despite having been cast without the state-mandated ID.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile

Commentary

Edward B. Foley

Of Bouncing Balls and a Big Blue Shift

Edward B. Foley

It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia. 

Read full post here.

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In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

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Info & Analysis

Judge Denies Motion for Preliminary Injunction in NC Case

U.S. District Judge Thomas D. Schroeder denied the motion for a preliminary injunction sought by the plaintiffs in a case challenging a new North Carolina voting law as violating the Voting Rights Act and the federal Constitution. Judge Schroeder also denied the defendants' motion for judgment on the pleadings. The case is North Carolina NAACP v. McCrory.

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