by E. Sebastian Arduengo
It appears the push by Ohio Secretary of State Jon Husted to suppress voter turnout through thinly veiled measures like voter ID laws and a confusing provisional ballot policy will continue through to Election Day. ACSblog has devoted extensive coverage to Husted's efforts to keep Ohio voters from the polls. The long and short of it is that since this election cycle got in to full swing, Husted (pictured) has striven to ensure that voting will be “fair and genuine” (read: as difficult as possible) for hard-working Ohioans.
It started back in August when Ohio Republicans reduced the early voting period from thirty-five days to eleven, even cutting back on the Sunday before the election – the time when African-American churches have traditionally encouraged parishioners to exercise join in the democratic process. In response, voting rights activists had to gather enough signatures to force an Election Day referendum on the issue. The state’s Republicans then changed course and stopped all early voting in the three days before Election Day, with an exception for members of the military. The Obama campaign challenged that measure in court, and on Oct. 11, the U.S. Court of Appeals for the Sixth Circuit ruled that the early voting restrictions violated the equal protection clause and restored full early voting for Ohioans.
But, that setback didn’t stop Husted. He cut back early voting in Democratic-leaning cities by limiting early voting hours on weekdays, making it nearly impossible for those with day-jobs from voting either before or after work. Meanwhile, in heavily Republican areas, Republican election officials approved measures to expand early voting hours on nights and weekends. This sparked another public outcry, and instead of expanding ballot access for all, Husted issued a statewide mandate directing all counties to limit early voting times. Republican election officials minced no words when explaining why they wanted to limit voter turnout. In the words of Franklin County (Columbus) GOP Chair Doug Preisse, “I guess I really actually feel we shouldn’t contort the voting process to accommodate the urban [e.g., minority] voter-turnout machine.”
Now, with the election less than a day away, Husted is at it again. This time it’s in the form of a controversial new order regarding how provisional ballots are counted. Ohio voters have to vote provisionally whenever there is a wide array of problems, ranging from not having registration forms processed in time to people not voting in the right precinct. According to Ohio law, these ballots are not counted until they have been verified, which takes at least ten days. Husted’s new order spells out the requirements for submitting a provisional ballot, which includes a form that places the burden on the voter to record the form of identification that was shown to election officials. If the form, which has four tiny checkboxes, is not filled out correctly, then the ballot is not to be counted.
A lawsuit has already been filed by the Obama campaign, and early indications are that the order will not stand – mainly due to the fact that it violates Ohio election law, which requires the “appropriate local election official” to record what kind of identification a voter is using. Nevertheless, this last minute order is sure to create confusion among local election officials that will lead to the inadvertent discarding of provisional ballots that would otherwise be counted.
It’s about time that state election officials actually worked to ensure that the voting process is more open to all. For more detail on why “voter integrity” regulations are constitutionally dubious, see Loyola law school Professor Justin Levitt’s ACS Issue Brief, The New Wave of Election Regulation: Burden without Benefit.