New Voter Registration Rules in Ohio

Secretary of State Ken Blackwell has adopted a controversial new rule that, according to some voter registration and voter rights groups, makes it extremely difficult to complete the voter registration process. The provision drawing the most fire from critics is the requirement that a voter registration worker must personally deliver the registration forms entrusted to them "directly" to a county board of elections or the Secretary of State's office . The normal practice for voter registration groups is for the worker to return the forms to a supervisor who, after verifying the accuracy of the forms, turns in the registration forms in bulk to the board of elections or the Secretary of State. Secretary Blackwell's new rules would prohibit this.

On June 14, in response to concerns raised by voter registration groups, the Secretary of State's office clarified the voter registration process by filing revised rules that allow voter registrants to use the U.S. Postal Service to mail voter registration forms to the Secretary of State or a county board of elections. However, the revised rules still require that the individual voter registrants return the forms themselves, thus not allowing the registrants to return the forms to their parent organization first before turning them in. [1]

Agency Rulemaking Process: An Overview

The genesis for the new rules is House Bill 3, passed by the Ohio Legislature and signed into law by Governor Taft on January 31, 2006. Among other things, HB 3 set strict procedural requirements for registering voters. During a public hearing on June 5 of this year, the Secretary of State's office announced the rules that will govern the registration process. A brief review of the agency rule-making process in Ohio may help to clarify the current status of the rules.

Once an Ohio state agency writes a rule, it must file its rule with the Joint Committee on Agency Rule Review (JCARR), a committee made up of five members of the Ohio Senate and five members of the Ohio House of Representatives. [2] Upon filing with JCARR, the rule is still a proposed rule that does not go into effect until JCARR conducts a statutorily required public hearing. [3] JCARR does not actually approve or invalidate rules at these hearings. Rather, JCARR can recommend invalidation of a rule to the General Assembly, which can then act to invalidate it.

There is an exception to this general rule-making process: emergency rules. An emergency rule is filed with JCARR when a state agency feels the need to immediately implement rules governing a certain procedure without going through the lengthy JCARR process. When an emergency rule is filed with JCARR, it is a notification filing only, meaning that JCARR does not review the substance of an emergency rule. Some emergency rules must be accompanied by a copy of the executive order signed by the governor authorizing the emergency rule. An emergency rule remains in effect for a maximum of 90 days after being filed with JCARR.

The Secretary of State's office has used both the emergency and proposed rule procedures with regard to the voter registration rules at issue here. On May 1 of this year, Governor Taft issued an executive order authorizing the implementation of the emergency rules, numbered 111-12-01 through 111-12-06. The Secretary of State's office filed these emergency rules with JCARR, thus putting them into effect. These emergency rules will expire on July 30, 2006.

The Secretary of State's office then filed the proposed version of the rules (which, in this case, exactly match the emergency rules) on May 5 (and then filed an amended version of the rules again on June 14 with the changes mentioned above). As required by statute, the Secretary of State's office held a public hearing on June 5 announcing these proposed rules (this was the hearing that caused the uproar amongst voter registration groups). JCARR must then hold a public hearing concerning the proposed version of the rules. As of the time of this writing, JCARR will consider the voter registration rules at its hearing on June 26. After assessing the proposed rules for violation of one of JCARR's four areas of jurisdiction, JCARR can then either recommend invalidation to the General Assembly or allow the rule to leave the committee without such an invalidation recommendation (which, according to JCARR, is a tacit approval of the rules). In making this determination, JCARR is attempting to ensure that: the rules do not exceed the scope of the rule-making agency's statutory authority; the rules do not conflict with a rule of that agency or another rule-making agency; the rules do not conflict with the intent of the legislature in enacting the statute under which the rule is proposed; and that the rule-making agency has prepared a complete and accurate rule summary and fiscal analysis of the proposed rule, amendment, or rescission. JCARR's jurisdiction over the rules ends 65 days after filing, at which point the Secretary of State's office can file the final rules with JCARR. Ten days after this final file, the rules can be formally adopted by the Secretary of State's office and at that point become official.

To summarize: the emergency voter registration rules are currently in effect, but will expire on July 30, 2006. JCARR will hold a public hearing concerning the proposed rules on June 26 (assuming there are no changes to the agenda) where it will decide whether to recommend invalidation of the rules to the General Assembly. If no such invalidation recommendation is given, the Secretary of State's office can final file the rules 66 days after filing the proposed rules. Ten days after this final file, the rules go into effect. Therefore, if the meeting is held on June 26, and JCARR gives no recommendation to invalidate, the final version of the voter registration rules could be in effect as early as the third week in July.

Secretary Blackwell's Rules and House Bill 3

The primary criticism levied by voter registration and voter rights groups concerning the new rules is that the rules are too burdensome and are not a proper interpretation of HB 3. The rules are no doubt strict; however, the rules must be considered in light of the requirements set forth in HB 3.

Two separate sections of HB 3 govern the return of voter registration forms. Section 3599.11(B)(2)(b) states that "[s]ubject to division (C)(2) of this section, no person who helps another person register outside an official registration place shall knowingly return any registration form entrusted to that person to any location other than any board of elections or the office of the secretary of state." Similarly, section 3599.11(C)(2) states that "[n]o person who receives compensation for registering a voter shall knowingly return any registration form entrusted to that person to any location other than any board of elections or the office of the secretary of state." A violation of either of these sections results in election falsification, a fifth degree felony.

The language of the rules established by the secretary of state's office tracks this statutory language. The Compensated Registrars Training instructions state that for anyone who has been entrusted with a completed voter registration form, that person must return the application form "directly to the office of a county board of elections or the Secretary of State." The rules further state that the voter registration worker "shall not, under penalty of law, return the completed form to any other person, group, organization, office or entity." This is the language that, according to Katy Gall, Ohio's head organizer for the Association of Community Organizations for Reform Now (ACORN), "essentially ends voter registration drives." [4]

Likewise, the Brennan Center for Justice at New York University Law School issued a press release stating that they were going to fight the new rules. What is unclear at this time, however, is exactly what legal argument the Brennan Center will advance in opposition to the rules. In their press release, the Brennan Center stated that the voter registration rules are obstructing voter registration efforts in Ohio, but the press release did not state which, if any, legal remedies the Brennan Center may pursue.

The chief sponsor of the bill in the Ohio House of Representatives, Kevin DeWine, does not believe that the rules are the problem. He said that he believes the secretary of state's office properly drafted the rules to comply with the bill, but that the bill might need to be fixed because the legislature did not intend to subject registrars to criminal prosecution for first turning their voter registration forms over to a supervisor. [5]

These differences of opinion are not likely to end anytime soon. The next step in this process is the JCARR hearing scheduled for June 26. Stay tuned.

Notes

[1] http://www.cleveland.com/news/plaindealer/index.ssf?/base/news/1150360359279240.xml&coll=2

[2] The following agency rule procedures are summarized from JCARR's procedures manual, available online at https://www.jcarr.state.oh.us/images/stories/manual.pdf, and from phone conversations with a member of the JCARR staff.

[3] There are two types of rule procedures in Ohio: 111.15 and 119.03 procedures, named after the respective sections of the Ohio Revised Code that define them. 111.15 rules do not require a public hearing, while 119.03 rules do. The rules promulgated by the Secretary of State concerning voter registration are 119.03 rules.

[4] Phone interview with Katy Gall, June 12, 2006.

[5]http://www.cleveland.com/search/index.ssf?/base/news/1149582726265130.xml?nohio&coll=2