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Election Law @ Moritz

Election Law @ Moritz


Ohio's New Disenfranchisement Bill

In 2004, Ohio became infamous for making it difficult to vote and have one’s vote counted. Much of the criticism was directed at then-Secretary of State Ken Blackwell. Remember his directive to reject registration forms on less than 80-pound paper weight?

Now, Ohio House Republicans are attempting to go further than Blackwell ever dared. In an obvious attempt to gain an advantage in the 2012 presidential election, they are attempting to rush through a bill (HB 159) that would make it more difficult for eligible citizens to have their votes counted. Ohio already has a tough voter ID law, but the proposed bill would make the burden on eligible citizens more onerous, requiring that in-person voters present one of four specified forms of government-issued photo identification.

“Disenfranchisement” isn’t a word to be used lightly. But it is necessary to capture this bill’s purpose and impact. Passage of this bill would restore our state’s unfortunate reputation as the nation’s capital of vote suppression. Yet so far, it has gone completely under the radar. This comment provides background on the problem, debunks the arguments in favor of the bill, and anticipates the lawsuits that can be expected to follow if it passes.

The Problem

What’s so bad about voter ID? The basic problem is that many eligible citizens don’t have the types of ID that the bill would require. While it’s hard to say exactly how many will be discouraged from voting, we do know that some segments of the population will be especially hard hit – particularly young, elderly, disabled, and minority voters. These groups are much less likely to have the types of ID that Ohio’s new bill would mandate.

A bit of history is helpful, in clarifying why this bill will cause a great deal of harm while doing no good. In 2005, the majority-Republican Ohio legislature enacted a bill (Sub HB 3) that imposed stricter ID requirements than federal law. Specifically, it required in-person voters to present either photo ID or nonphoto ID with their name and current address. While there wasn’t much evidence that these requirements were needed, its vote-suppressive impact appears to have been modest. That’s because the vast majority of citizens have one of the permitted forms of ID, and because the law included an exception for the few who don’t.

Ohio’s ID law is still on the books, but it triggered several years of litigation over inconsistencies in its application, culminating in a consent decree last year in Northeast Ohio Coalition for the Homeless v. Brunner (NEOCH). If this new bill passes, it will destabilize the rules yet again – and undoubtedly result in several more years of litigation, just as election officials and poll workers have become familiar with the existing requirements, as clarified through the NEOCH case.

The Evidence

The claim that this bill is needed to ensure election integrity is belied by the facts. What’s remarkable is the utter lack of evidence that the new ID bill would address any real problem.

I’ve closely studied Ohio’s election system for the past eight years, and am not aware of a single proven incident of in-person voter impersonation fraud – that is, a voter going to the polls pretending to be someone he or she is not. If there are any incidents of in-person voter impersonation in Ohio, they are extremely rare. Yet that is the only type of fraud that a government-issued photo ID requirement can even hope to address.

The only documented case of impersonation I could find in recent Ohio elections involved absentee voting by a mother pretending to be her daughter. This isn’t surprising. The few people who attempt voter impersonation aren’t likely to risk criminal prosecution by showing up at the polling place; they are much more likely to vote by mail. The bill won’t do anything about mail voting fraud, double voting, people registered in the wrong place, or any other form of illegal voting.

Though its supporters may yell and scream about ACORN, the bill won’t do anything about the phony registration forms that this now-defunct group was accused of submitting. The proponents’ contrary argument blurs the distinction between registration fraud and voting fraud. Mickey Mouse’s name may have appeared on a registration form, but he didn’t show up to vote.

Put simply, the bill is a solution in search of a problem – and, as explained below, would make the problems with our election system much worse.

The Purpose

It’s obvious that the bill’s real purpose is to keep eligible Ohioans from voting. Its supporters’ suspect motivation is evident from their timing. The bill was just introduced Tuesday and, with no public fanfare, a committee hearing was quickly scheduled for tomorrow. Ohio is currently in the midst of a fierce debate over whether to pass a bill that would take away public sector employees’ collective bargaining rights (SB 5).

It takes no great political acumen to discern that the ID bill’s sponsors are trying to sneak it through the back door, while Democrats and progressive activists are otherwise occupied. Their apparent plan is to ram it through the committee, chaired by one of the bill’s sponsors, with little debate and even less factfinding.

A close look at the bill’s specifics paints an even uglier picture. The bill would require those who vote in person on election day to present one of four forms of government-issued ID: a driver’s license, a state ID issued by the registrar of motor vehicles, a military ID, or a U.S. passport.

Absentee voters are not bound by this requirement, with one big exception: Those who cast absentee ballots in person (which other states refer to as early voting) are required to present one of the required forms of ID. Students of election fraud will recognize that this is exactly backwards. While voting fraud is rare, most documented incidents involve mail-in absentee ballots. Of course, the real motivation for going after in-person voters is obvious. Democrats are more likely to cast in-person absentee ballots, rather than vote by mail, and those are the votes that the bill’s sponsors are seeking to suppress.

The Impact

The bill’s supporters claim that eight other states require photo ID, but that’s misleading. They’re apparently relying on the National Conference of State Legislatures website of states that require or request photo ID. A close look at those laws reveals that only two states – Indiana and Georgia – refuse to count the votes of those who lack photo ID, as Ohio’s bill appears to require. The other states allow voters to sign an affidavit declaring their eligibility and, absent contrary evidence, will count their ballots.

It’s difficult to say precisely how great a vote-suppressive impact this bill will have, if enacted. The many factors that affect turnout make it hard to pin down the precise impact of comparable laws in Georgia and Indiana. But the available evidence makes clear that its burden will not fall evenly on all citizens. Rather, it will strike hardest against those groups who are already underrepresented in the electorate – specifically, minority voters, people with disabilities, those who are elderly, and poorer citizens.

Studies from Georgia and Wisconsin have documented that African American and Latino voters are much less likely to have a driver’s license than White voters. This is probably because members of these groups, statistically speaking, are less likely to drive or own a car. Of course, these groups also tend to vote Democratic.

It’s also worth emphasizing the negative impact that this bill will have on younger voters. Ohio’s bill conspicuously leaves out student ID – even from a state university – as an acceptable form of voter identification. Again, the reason is self-evident: College students are more likely to vote Democratic, and these are among the votes that the bill’s sponsors are seeking to suppress.

The Lawsuits

We can expect years of litigation if this bill becomes law. In practical terms, a requirement of government-issued photo ID functions like the poll tax struck down by the U.S. Supreme Court in Harper v. Virginia Board of Elections. Although there’s a provision to provide free ID to indigent voters, many voters will not have the documents needed to get state ID handy – and may have to pay for them. There’s also the unnecessary burden that the law would impose on voters lacking ID, who will now have to stand in one line at the BMV only to stand in another at the polls on November 6, 2012. This amounts to a tax on the voter’s time, the functional equivalent of what the Supreme Court struck down in Harper.

The bill’s proponents can be expected to argue that it’s modeled on Indiana’s law, which the U.S. Supreme Court upheld in Crawford v. Marion County Board of Elections. But for several reasons, the sponsors of Ohio’s bill shouldn’t draw much comfort from Crawford. There was no majority opinion, and the lead opinion by Justice Stevens was extremely narrow. The decision only involved a facial challenge, leaving open the possibility that the law might be struck down as applied to specific voters or groups – like the nuns who were later turned away for having outdated IDs. Crawford’s lead opinion relied heavily on the fact that those challenging the Indiana law failed to come up with evidence showing a serious burden on voters.

If Ohio’s bill passes, the lawyers challenging it will surely do their homework and take the time to develop stronger evidence of its negative impact on eligible voters. It will help their case if the Republican-dominated legislature rushes the bill through with scant evidence of voter impersonation fraud, as appears to be their plan. These procedural defects, in addition to the history of vote suppression in Ohio, can also be used to distinguish Crawford and challenge the law on federal equal protection grounds.

There’s also the possibility of a state constitutional challenge to Ohio’s ID bill, if it becomes law. When Missouri passed a comparable photo ID law, that state’s supreme court struck it down under that state’s constitution. It’s true that Ohio Supreme Court justices are elected as nominees of their parties, that Republicans hold a 6-1 majority, and that the court has generally been sympathetic to Republican interests in election cases. But it’s hard to believe that the court could overlook the transparently partisan purpose behind Ohio’s proposed bill, particularly given the absence of evidence that in-person voter impersonation is a serious problem.

Yet another possibility is a race discrimination lawsuit under Section 2 of the Voting Right Act. Ohio’s proposed law is part of a phenomenon in recent years that I’ve dubbed the new vote denial. While the old vote denial involved practices like literacy tests and poll taxes, the new vote denial is much more subtle. Supporters of modern-day barriers to minority participation cite neutral reasons for their practices – most often, as with Ohio’s bill, voter fraud. But the Voting Rights Act doesn’t just prohibit intentional race discrimination, which is notoriously hard to prove. It also bars a voting law or practice that “results in” the denial or abridgement of voting rights based on race. Cases under Section 2 tend to be factually complicated, relying on a combination of statistical, historical, and anecdotal evidence of race discrimination. With some legwork, there’s a good chance that of a successful challenge to Ohio’s law under the Voting Rights Act.


This may be the first you’ve read about Ohio’s proposed voter ID law, but it probably won’t be the last. Should this bill pass, it will cast a shadow over the 2012 presidential election, in which Ohio is again likely to be pivotal. It will undoubtedly sow confusion for Ohio voters and poll workers alike, many of whom were just getting used to the current ID rules. It will surely result in a major increase in the number of provisional ballots cast, which will in turn increase the likelihood of post-election disputes over the result. It will increase both headaches and administrative costs for counties that run elections and the bureau of motor vehicles, at a time when they’re watching every penny. It will undoubtedly result in years of litigation.

Most important, the bill will make it more difficult for eligible citizens to vote. Sadly, this appears to be its only real purpose. Its passage would be yet another great embarrassment for our state.

Dan Tokaji is an authority on election law and voting rights. He specializes in election reform, including such topics as voting technology, voter ID, provisional voting, and other subjects addressed by the Help America Vote Act of 2002. He also studies issues of fair representation, including redistricting and the Voting Rights Act of 1965. View Complete Profile


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