Posted: October 22, 2008
The Latest from the Land of [Election] Litigation
UPDATE (Oct. 24, 5:30pm): Ohio Secretary of State Brunner issued a new directive to govern the process of verifying provisional ballots in order to resolve this dispute for the 2008 election.
Even as Ohio Attorney General (and former Moritz dean) Nancy Rogers attempts to mediate the dispute between Republicans and Secretary of State Brunner over what role if any database “mismatches” should have in the process for determining the eligibility of voters who have cast absentee ballots, these state officials are confronting the resurrection of a separate lawsuit originally filed in 2006. That lawsuit, entitled Northeast Ohio Coalition for the Homeless (NEOCH) v. Brunner, challenges the state’s voter identification and provisional voting rules. A preliminary injunction hearing in federal district court in Columbus has been scheduled for tomorrow (Thursday).
In 2006, NEOCH got up to the U.S. Court of Appeals for the Sixth Circuit, which vacated a TRO that the district court had entered to block enforcement of the voter ID rules specifically for absentee voting. Relying on the then-“brand new” Purcell decision from the U.S. Supreme Court, the Sixth Circuit majority—it was a split 2-1 decision—said that the TRO was unduly disruptive of the voting administration process coming so close to the election and that the interests of any voters harmed by invalid ID laws could be protected adequately by counting their provisional ballots after Election Day. After the case was remanded to the district court, the parties worked out a Consent Order to govern the review of provisional ballots cast in 2006. That order, however, has expired. When Jennifer Brunner replaced Kenneth Blackwell as Secretary of State in 2007, it appeared as if this lawsuit—like many of the others that had been filed in 2006 or even earlier—would be settled. But those settlement negotiations broke down, and now NEOCH has been reactivated.
The NEOCH plaintiffs are specifically asking for a preliminary injunction that would require the Secretary of State to do more to mandate uniform standards for the evaluation of provisional ballots throughout Ohio. In essence, given the Consent Order applicable in 2006, the plaintiffs are asking for something equivalent, or perhaps even more specific in light of evidence that emerged from 2006 concerning variations among Ohio’s 88 counties in the rates at which they deemed provisional ballots to be eligible for counting. Disclosure: in seeking this preliminary injunction, the plaintiffs cite From Registration to Recounts, a book that my Moritz co-authors (Steve Huefner, Dan Tokaji, and Nate Cemenska) and I wrote. That book discussed some of this variation among counties in the rates at which they disqualified provisional ballots for particular reasons. I am not here expressing any view (one way or the other) on the merits of plaintiffs’ request for a preliminary injunction, or their use of this or related provisional voting data as part of their legal claim. (I am also not involved in this litigation, apart from this citation to Moritz’s scholarly work.)
The Secretary of State and the Attorney General are opposing the request for a preliminary injunction. (For complicated reasons that apparently relate to a dispute between these two offices in 2006, two separate oppositions to the preliminary injunction have been filed.) They say that adequately uniform and specific standards have been put in place for the counting of provisional ballots across Ohio. Therefore, they argue, there is no risk of a Bush v. Gore violation in this counting process.
In a reply, the plaintiffs say that they will show at tomorrow’s hearing evidence of county variation in the procedures used to evaluate provisional ballots (and not just the data of different rates of disqualifying them), claiming that this variation constitutes a Bush v. Gore violation. They claim that Secretary of State Brunner has encouraged this local variation in an internal memorandum that states: “The process that a BOE [Board of Election] uses to verify the voter’s ID and qualifications is up to the Board—and there should be a policy in place regarding this.” It is not clear to me, at least at this point based on a quick initial examination of the preliminary injunction papers, the extent to which the plaintiffs are complaining about variations in substantive standards for reviewing provisional ballots, or the procedures used to apply those substantive standards, or both—and what the plaintiffs would have the State do instead. But perhaps the hearing will clarify these points.
The plaintiffs also renew their complaint about the voter ID rules, at least insofar as they are applied to homeless individuals. They argue that the ID requirement, unlike Indiana’s in Crawford, operates as an unconstitutional poll tax. Finally, plaintiffs say that they are not too late in renewing their request for a preliminary injunction applicable to the 2008 election.
For word on the hearing, and what might happen in its aftermath, stay tuned . . .
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