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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Free & Fair

Ohio's ID Rules in the Appeals Court: What Next?

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October 28, 2006

Given the Ohio AG’s professed willingness to compromise, one wonders whether it would be acceptable to both sides if the Sixth Circuit court of appeals vacated the district court’s suspension of the ID rules applicable to absentee voting, subject to the following exceptions and conditions:

first, the county boards of election are required to preserve all absentee ballots ruled ineligible for counting for lack of proper ID until further notice of the district court;

second, no absentee ballot may be ruled ineligible for counting on the ground that the ID provided with it is the larger number that appears in the upper right-hand corner of an Ohio driver’s license (associated with the photograph on the license) rather than the smaller number on the left underneath the words “LICENSE NO”;

third, no absentee ballot may be ruled ineligible for counting for lack of proper ID if the ballot is submitted with “current utility bill” or “other government document” that conforms to the definitions of those terms contained in Secretary of State Directive 2006-78 (October 26, 2006);

fourth, no absentee ballot may be ruled ineligible for counting for lack of proper ID if it was submitted in person to a county board of election, or postmarked for mailing by the U.S. Postal Service, during the time in which the district court’s orders were in effect;

fifth, in all other respects, the county boards of elections are reminded of their obligation to enforce uniformly and consistently the ID rules applicable to absentee voting enacted by the General Assembly and implemented by the Directives of the Secretary of State’s Office, including those provisions that specify that a military ID must contain a current address in order to qualify (even if military IDs are not issued in this form), and that evidence showing unequal, discriminatory, or inconsistent enforcement of these ID rules may be considered in further proceedings in the district court.

In thinking about this kind of compromise, however, one wonders whether it is too complicated to be implemented at this point, even if it would have been preferable had the district court initially issued a ruling along these lines. In other words, going forward, it might be better for the Sixth Circuit simply to leave in place the district court’s complete suspension of the ID rules applicable to absentee voting, even assuming the Sixth Circuit believes that complete suspension to have been improper. Although the Sixth Circuit might not wish to reward a district court for excessive intervention into the state’s electoral process, especially so close to Election Day, the appellate court nonetheless needs to consider the countervailing costs if its own decision were to change the applicable rules for this election again—and were to do so in a way that makes the rules even more complex.

If the Sixth Circuit does reach this conclusion, refusing to stay or vacate the district court’s orders solely to avoid the harms associated with last minute on-again-off-again changes in the electoral rules, perhaps it will wish nonetheless to send the district court a signal to tread a bit more carefully and narrowly next time.