Election 2016

Hillary’s Lawyer Sues Ohio To Thwart Voter Suppression Tactics That Helped GOP Steal Ohio In 2004

The 2016 voting wars have begun.

Photo Credit: www.brennancenter.org

Hillary Clinton’s top campaign lawyer and voting rights activists have sued Ohio in federal court to overturn a half-dozen Republican-created barriers that could suppress “hundreds of thousands” of likely Democratic votes in 2016.

These include many of the tactics used by the GOP in 2004 that helped Republicans steal the election for George W. Bush, including narrowing voter registration, moving polling places, creating long lines, disqualifying eligible voters’ ballots, and limiting options to correct mistakes made by voters or by poll workers.

“The effects of these provisions and procedures will be felt most keenly among African Americans and Latino voters, causing them to have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice,” said the lawsuit by the Ohio Organizing Collaborative, which was filed against Ohio Secretary of State Jon Husted and Ohio Attorney General Michael DeWine.

Marc Elias, an election law specialist with Perkins Coie in Washington, D.C., is Clinton’s top campaign lawyer and one of the attorneys who sued. The lawsuit is the first litigation over the partisan voter suppression tactics of the 2016 presidential campaign, accusing Ohio Republicans of revoking procedures adopted after 2004 that opened up the process.

The suit seeks a federal court order to reverse a half-dozen actions taken by Ohio’s GOP-controlled Legislature and signed into law by Republican Gov. John. R. Kasich that could stymie, discourage or prevent the state’s urban Democratic voters from registering to vote and casting ballots that count. There is a deja-vu quality to these election law changes, because they were among the tactics used by Republicans in 2004 when George W. Bush beat John Kerry in that year’s final battleground state, re-electing Bush.

“Since the November 2012 elections, Ohio’s Republican-controlled General Assembly and Republican Governor have enacted several changes to the state’s voting laws that have the effect of burdening, abridging, and/or denying the voting rights of all of Ohio’s citizens,” the lawsuit said. “These changes, moreover, were designed to will disproportionately burden specific populations, in particular African Americans, Latinos, and young people—each of which are, not coincidentally, core Democratic constituencies.”

Here are the six top election law rule changes the suit seeks to reverse.

1. Restore “Golden Week.” Before the GOP acted, Ohioans could register and vote on the same day in the first week of October. That was the result of two laws, the end of the state’s voter registration deadline overlapping with the start of voting by mail. In essence, a voter could show up at a county office, register, get an absentee ballot, fill it out, and turn it in—creating a de facto same-day process. The GOP shortened the voting by mail period, eliminating so-called “Golden Week,” which 13,000 Ohioans took advantage of in 2008 and 6,000 voters did in 2012.

2. Prevent Long Lines For Early Voting. The GOP wants to discourage early voting in other ways. Currently, Ohio limits that option to one location per county. That scenario creates long waits in the state’s urban centers, the Democratic strongholds, while that is not the case in the Republican-heavy countryside. “Take an example, voters in Franklin County, which is home to Columbus and The Ohio State University and has approximately 800,000 registered voters, are limited to one EIP [early in-person] voting location, as are voters in Noble County, which has approximately 9,000 registered voters—an approximate ration of 89 to 1,” the lawsuit said.

3. Make Sure There Are Enough Voting Machines. This was a big problem in 2004, where county election officials used the low turnout from the 2002 midterm elections to allocate voting machines, causing voters to wait in line for hours and hours. A version of this allocation formula based on low-turnout estimates is in play for 2016, the lawsuit said. “The result of S.B. 200 [legislation] and [Secretary of State] Directive 2014-26 will be the reduction in the number of voting machines and a resulting increase in the length of lines at the polls.”

4. Offer All Eligible Voters The Vote By Mail Option. The GOP knows their suburban and rural base tends to vote by mail more than Democrats—especially those living in the  state’s inner cities or at universities. The Secretary of State mailed 6.5 million absentee ballot applications to any registered voter who voted in the last four years, but did not send absentee ballot applications to Ohioans who have not respond to a post card. “As a result of this decsion, more than 1 million registered voters did not receive absentee ballot applications,” the lawsuit said.

5. Tell Voters If Provisional Ballots Are Properly Filled Out. Just because you vote at a polling place does not mean your vote will count. If you are not in a poll book listing registered voters, you will receive what’s known as a provisional ballot. That is kept apart from regular ballots and not counted until that person’s registration is verified.

Ohio has taken several steps to make it harder to validate provisional ballots. First, if you make a mistake filling while out the ballot, current law prevents poll workers from telling you that. In contrast, if a voter makes a mistake on an absentee ballot that’s mailed in, the county will inform that person so they can fix it. “Unlike voters casting absentee ballots, a voter casting a provisional ballot is not notified of deficiencies on the affirmation form or given an opportunity to correct such deficiencies after casting a provisional ballot on Election Day,” the suit said.      

6. Count All Provisional Ballots Cast. Here’s another example of a voter suppression tactic that cost Democrats thousands of votes in 2004. The state is encouraging counties to consolidate polling places—by moving precincts into one central location like a high school gym. But if a voter does not turn in his provisional ballot at the right table—for his correct precinct—it will not be counted. These “right church/wrong pew” votes could be rejected, the suit said, posing a “risk of disenfranchisement for getting in the wrong line.”

Bush v. Kerry All Over Again

These fine-print election law changes are not new. All of these—with the exception of “Golden Week,” which was adopted after 2004—were seen in the ugly finale of Ohio’s 2004 election. You can be sure that other election law litigation like this lawsuit will be filed in other states before the 2016 election. What’s notable about this suit, however, is that is being led by Clinton’s top election lawyer, and that it has been filed so early.

It’s clear that Democrats are well-aware of the GOP’s voter-suppression playbook. They are asking a court to throw out all these rules under several Constitutional Amendments ensuring equal treatment, as well as for violating civil rights and voting rights statutes.

“If the laws and procedures described above are not invalidated, hundreds of thousands of Ohioans will find it substantially more difficult to exercise this fundamental right,” the suit says. “Some of these voters will be completely disenfranchised, unable to wait in prohibitively long lines caused by these restrictive measures to cast their ballots or because they failed to satisfy the new stringent requirements that Ohio has imposed for counting provisional ballots and absentee ballots.”      

Steven Rosenfeld covers national political issues for AlterNet, including America's democracy and voting rights. He is the author of several books on elections and the co-author of Who Controls Our Schools: How Billionaire-Sponsored Privatization Is Destroying Democracy and the Charter School Industry (AlterNet eBook, 2016).

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