Posted: October 27, 2006
TRO in Ohio Voter ID Case: Initial ThoughtsBy limiting the TRO to absenting voting, Judge Marbley—at least for now—has avoided problems that could have emerged with having to retrain poll workers on what ID rules to apply to in-precinct voting on November 7. Apparently, however, Judge Marbley intends still to consider the possibility of enjoining the state’s in-precinct voter ID rules at a hearing scheduled for next Wednesday. I question the feasibility of any such ruling only six days before Election Day—attempting to instruct poll workers on their obligation to enforce only the ID requirements of the Help America Vote Act (HAVA) would be a daunting task, given the complexity of even those limited requirements—and it could be expected that uncertain poll workers would err on the side of requiring voters to cast provisional ballots (as I suggested previously). But perhaps we shall learn new information over the next five days that would change one’s view of the balance of competing equities. [NEW THOUGHT (10/27, 6:10am): I now realize that a preliminary injunction issued next Wednesday, November 1, with respect to in-precinct voting on November 7 could apply, not to the collection of ID information by poll workers as required by Ohio’s new law, but rather only to the counting of provisional ballots cast by voters without the ID information sought by the poll workers. A limited judicial order of this type seems at this point to be the least intrusive form of federal-court intervention to remedy any violation of the Equal Protection Clause that might occur as a result of the differential administration of the state’s new ID law by poll workers in different counties, or different precincts within the same county. For one thing, a federal-court order applicable only to the counting of provisional ballots, because it would not attempt to regulate the conduct of the poll workers themselves, would not require the retraining of those poll workers and thus would minimize the disruptive effect it would have on polling place operations. Conversely, a federal-court order issued in advance of November 7 concerning the counting of provisional ballots has the desirable quality of being judicial intervention before these ballots are cast and without any knowledge of which candidates hold an unofficial lead on November 8 based on the initial counting of conventional (non-provisional) ballots. In other words, this kind of federal-court order would set in advance the rules for counting provisional ballots that lack ID information sought by some poll workers in violation of Equal Protection, rather than having the federal court determine those rules in the undesirable context after November 7 of knowing how many provisional ballots a candidate needs to make up a deficit among conventional ballots.] Focusing on absentee voting, it is certainly understandable if, as reported, Judge Marbley was disturbed by the directive issued earlier today from the Secretary of State’s office, which ruled that absentee ballots containing the “wrong” number taken from the voter’s driver’s license would be disqualified. Ohio driver’s licenses happens to contain two numbers, one prominently displayed above the driver’s photograph in the top right corner, the other inconspicuously sandwiched between the driver’s address and birth date. As it turns out, it is the latter number which is the official driver’s license number. The former is one that the Department of Motor Vehicles keeps for other administrative purposes. Understandably, many absentee voters have provided the former rather than latter number when prompted to submit their “driver’s license number” with their absentee ballot. By ruling that only the latter number is acceptable, the Secretary of State’s office inappropriately made the voting process a game of “gotcha” that in no way serves the state purpose of a voter identification rule. (In no way whatsoever does it aid in the prevention of voter fraud to punish a voter for copying the more prominent of two numbers contained on the voter’s driver’s license.) If Judge Marbley’s order simply requires election officials to count an absentee ballot regardless of which of these two driver’s license numbers the voter provides, it would be entirely commendable. But if Judge Marbley’s order goes further and prohibits election officials from instructing absentee voters to provide either a driver’s license number (whichever one) or the last four digits of a voter’s Social Security Number (SSN), as Ohio law newly requires this year, the order is arguably problematic. (As I have yet to see a written form of the order, my thinking here is necessarily speculative.) It is not clear what the federal-law basis for invalidating this kind of alternative-options requirement would be, especially in light of HAVA’s own similar ID rules. Moreover, given even a remote possibility that Judge Marbley’s order could be reversed on appeal, one worries about any absentee voter who does not provide the required information during the interim period in which the order is in effect, only to become disenfranchised if and when the higher court reinstates the requirement. In considering the practical effect of this new TRO (assuming, as has been reported, that its scope is to invalidate any enforcement of Ohio’s new voter ID law applicable to absentee voting that the General Assembly adopted in the past year), it is worth distinguishing between mail-in absentee voting and in-person early voting at the county boards of election offices. If a mailed-in absentee ballot already contains one of the two driver’s license numbers, or the last four digits of the voter’s SSN, then enforcement of the ID law requires nothing more than the election board’s examination of this information as a prerequisite to counting the ballot. Likewise, if a mailed-in ballot contains none of this information, then enforcement means simply disqualifying this ballot for lack of any ID. Since the absentee ballots are not to be counted until November 7, what really matters is the counting rule in effect then. Whether or not the TRO stops the boards from seeking this ID information between now and then will not have a practical effect upon mailed-in absentee ballots that already have been sent to voters. (If, however, as a result of the TRO, in the remaining few days, boards were to send out absentee ballots without an instruction to provide this ID information, and the requirement to provide this information were reinstated on appeal, the practical consequences of this TRO would indeed be significant as to those voters disenfranchised as a result. It is hard to know, at this late date, how many voters might fall into this category.) By contrast, the practical effect of the new TRO is potentially much more significant with respect to in-person early voting (assuming the TRO purports to apply to this category of “no excuse absentee” voting). If starting at noon on Friday, October 27, the TRO disables the election boards from collecting a driver’s license number or last four digits of SSN from in-person early voters, and ballots are cast without this information being collected, then these voters are potentially vulnerable to disenfranchisement if the TRO is vacated on appeal. Yet an overriding principle of the electoral process should be that no voter who complies with all instructions that the election board provides at the time of casting the ballot should be disenfranchised because a subsequent change in the operative legal rules. Somehow, our system ought to be able to hold these voters harmless, whatever else may occur concerning the legal challenges to the voter ID rules during this election. If Judge Marbley’s order governs the collecting of ID information, and not just the counting of ballots that lack ID information, it need not have done so in order to protect the right of voters to cast a countable ballot. In fact, if the order does extend to the collecting of ID information, it may have the unintended consequence of jeopardizing the ability of eligible voters to cast a countable ballot for the reasons just stated. Yet, if that bell has already rung—with this kind of order going into effect at noon on Friday—it may be too late to un-ring it. In this situation, we must rely on the appellate court to protect the rights of those who vote without providing ID as a consequence of the TRO itself.
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