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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Friday, October 27
TRO & Appeal in Ohio ID Case
U.S. District Judge Algenon Marbley issued this temporary restraining order yesterday in Northeast Ohio Coalition for the Homeless v. Blackwell, challenging Ohio's voter identification rules. Also issued were this order requiring the Secretary of State to issue a directive to the county boards of elections by noon today, and this order that the court issued directly to the counties. In addition, the Secretary of State's office issued this directive yesterday, which purports to clarify some of the issues that have allegedly been generating different practices across Ohio counties.

The TRO is limited to absentee ballots and doesn't speak to the rules that will govern in-person voting on election day. Judge Marbley finds several provision of the absentee voting ID rules impermissibly vague and, on that ground, enjoins their enforcement. In particular, he makes reference to the terms "current," "other government document," "military identification," and "driver's license number." The court enjoins the ID requirements, as applied to both applications for absentee ballots and completed absentee ballots. County boards are directed to preserve absentee ballots in their present form.

What this means, at least for now, is that voters casting absentee ballots won't have to provide identifying information. According to this AP story, the State plans to appeal. It's hard to predict what the Sixth Circuit will do but, as I noted yesterday, Purcell should lead the court to defer to the district court's factual findings -- especially its exercise of discretion in balancing the competing harms.

As my colleague Ned Foley notes here, one of the questions that Judge Marbley's order raises is what would happen to absentee ballots cast without the identifying information in the event that the Sixth Circuit reverses, given that absentee voting is now going on. It would seem transparently unfair to discard absentee ballots that are cast without identifying information during the period that this order is in effect. Thus, any reversal of this order would have to include a provision that any those interim absentee ballots be counted. But that sort of order would obligate local boards to apply one rule for counting absentee ballots cast while the TRO is in effect, and another rule to those cast before and after that window. This would likely exacerbate confusion for both county boards and voters. It's therefore hard to see how the Sixth Circuit could reverse this order without altering the balance of equities and causing additional disruption.

A preliminary injunction hearing is set for this coming Wednesday, November 1, at 9:00 am. At that hearing, Judge Marbley will presumably rule on the plaintiffs' request for an injunction aginst the ID provisions for in-person voting on Election Day.

Update: Ohio's Attorney General Jim Petro has announced that he will appeal the TRO issued by Judge Marbley, over the objections of his nominal client Secretary of State Ken Blackwell. The Columbus Dispatch has this report. This isn't the first time this has happened. As noted here, Attorney General Petro refused to take the position favored by Blackwell in 2004, in one of the cases regarding challenges to voter eligibility.

The Dispatch report also quotes Franklin County elections director Matt Damschroder as saying that some 5,000 of the 100,000 absentee ballots received so far -- or about 5% -- have identification problems and won't be counted, if the TRO is lifted. That's a significant percentage and, if true, tends to support Judge Marbley's conclusion that the ID rules are creating a significant obstacle for Ohio voters.

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