This topic is monitored by Moritz Law Professor Terri L. Enns
Federal Judge Orders Blackwell to Clarify ID Requirement
On Friday, October 15, Judge James Carr of the U.S. District Court in Toledo issued an order requiring Ohio’s Secretary of State, Ken Blackwell, to provide further details on what form of identification will suffice for first-time voters who did not provide sufficient identification when they registered by mail. Judge Carr’s order says that Blackwell is to submit this information to the court by 4:00 pm Monday, October 18.
Back in February, Blackwell had issued a directive to local election official stating that if would-be voters, when going to the polls on November 2, attempted to vote without providing their driver’s license or social security number (having also not provided this information on their mail-in registration), then these would-be voters would be permitted to receive provisional ballots but these provisional ballots would not be counted unless the would-be voters returned to the polls before they closed with the requisite ID (or went to the county board of elections with the same information by the same deadline).
On October 5, the League of Women Voters sued to overturn this directive on the ground that it conflicted with the new Help America Vote Act (HAVA) and its rules concerning IDs and provisional ballots.
Blackwell’s requirement that voters return to their polling places with proper ID, at least superficially, seems difficult to square with the provisional voting procedures set forth in HAVA. If voters can go home to get the required ID, then when they return to polls they are entitled to cast a regular ballot and have no need to cast a provisional ballot. Given doubts surrounding provisional ballots, would-be voters who are able to go home and return with the required ID presumably would be better off not casting a provisional ballot initially and simply returning with the ID to cast a regular ballot. Thus, Blackwell’s directive would seem to defeat the purpose of enabling voters to cast a provisional ballot, as HAVA requires, if they lack this ID when they first go to the polls. HAVA instead seems to obligate the state’s election officials to determine, even though these individuals did not submit ID either when registering or voting, whether they are nonetheless eligible to vote under state law.
HAVA specifically states that “[a]n individual who desires to vote in person” but does not have the requisite ID at the time (and who did not submit it when registering by mail” “may cast a provisional ballot under section 15482(a)” of the law. That section, in turn, states that the “election official at the polling place shall transmit the [provisional] ballot cast by the individual . . . to an appropriate state or local election official for prompt verification” and if that state or local official “determines that the individual is eligible under state law to vote, the individual’s provisional ballot shall be counted as a vote in that election in accordance with state law.” This language would not seem to permit the automatic disqualification of a provisional ballot if the would-be voter fails to return with ID by the time the polls close on election day.
Although Blackwell might argue that he is imposing this requirement as a matter of state law, and HAVA entitles him to do so, he has not cited any state law that specifically makes providing ID in this way a condition of eligibility to vote. On the contrary, Blackwell acknowledges that under Ohio law eligibility to vote is satisfied by anyone over 18 has been a resident of the state and registered for 30 days and lives in the precinct with they wish to vote. Ohio Revised Code § 3503.01, which Blackwell cited to the court, provides:
Every citizen of the United States who is of the age of eighteen years or over and who has been a resident of the state thirty days immediately preceding the election at which the citizen offers to vote, is a resident of the county and precinct in which the citizen offers to vote, and has been registered to vote for thirty days, has the qualifications of an elector and may vote at all elections in the precinct in which the citizen resides.
Thus, the apparent tension between Blackwell’s directive and both HAVA and Ohio law is the likely reason that Judge Carr has asked him to clarify the directive.
In his order, Judge Carr specifically asked whether a voter could satisfy Blackwell’s directive by orally reciting the last four digits of his or her Social Security number. If this oral recitation, without further documentary proof, were sufficient, then it would be unnecessary for a voter to go home and return to the polls in order to enable the provisional ballot to be counted. In this way, Judge Carr’s order appears to be attempting to preserve a meaningful function for the provisional ballot process when a would-be voter goes to the polls without ID. If the voter can orally supply the last four digits of his or her Social Security number, and election officials can subsequently verify this information, then the provisional ballot can be converted into an actual vote.
[Posted October 16, 2004]