Ohio: A Battleground State in More Ways than One

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By Kimberly Strawbridge Robinson

Sept. 7 — Ohio's voting rules for the Nov. 8 election are still up in the air.

Federal courts across the country are trying to sort out voting rules before the impending election.

But Ohio, with its 18 electoral votes, is a closely watched prize given its knack for correctly picking presidential winners.

The purple state is a battleground not only for presidential candidates, but also for voting litigation.

“Ohio is part of a larger trend in which we see pushback in the courts against attempts to restrict access to voting,” Jennifer Clark, counsel in the Brennan Center’s Democracy Program, New York, told Bloomberg BNA in an e-mail Aug. 29.

The Brennan Center has been actively engaged in litigation “to block harsh voter ID laws and voter registration restrictions,” according to its website.

“If these restrictions are allowed to stand for the November election, many Ohioans will find it more difficult to cast a ballot that counts than the last time they went to the polls to elect a president,” Clark said.

The Ohio Secretary of State's Office, which is responsible for the state's elections, didn't respond to a request for comment.

But Ohio Secretary of State Jon Husted said in an Aug. 23 press release that “Ohio offers a generous number of days, hours and ways to vote – making us one of the easiest states in which to cast a ballot.”

Hopes ‘Rise and Fall.'

Ohio is “where the hopes of presidential candidates rise and fall,” Husted said in a separate Aug. 23 press release.

“Since 1944, Ohioans have sided with the losing candidate only once – opting for Nixon over Kennedy in 1960,” according to 270towin.com, “an interactive Electoral College map for 2016 and a history of Presidential elections in the United States.”

The significance of winning the Buckeye state may be why the rules for the 7,535,667 registered Ohio voters are still in flux.

“Ohio is one of fifteen states with new voting restrictions in place for the first time in a presidential election in 2016,” Clark said.

“And there is litigation ongoing in many of these states that will or might impact the upcoming election,” she said.

Absentee, Provisional Ballots

Clark pointed to three major cases in Ohio that could affect voting in the upcoming election.

One case argues that recent legislation, Senate Bills 205 and 216, which require “voters to provide additional information on absentee ballot envelopes and provisional ballot affirmation forms, violates the Voting Rights Act and the Equal Protection Clause of the Constitution,” Clark said, referring to Ne. Ohio Coal for the Homeless v. Husted (6th Cir. 2016) (filed).

The new rules now require absentee and provision ballots to include five fields of information—“name, residence address, date of birth, signature, and some form of ID,” the U.S. District Court for the Southern District of Ohio said.

A ballot can be invalidated if that information isn't included.

In Ohio's 2015 general election, when those rules were in effect, “3,255,537 million ballots were cast (43.24% turnout), including 435,458 absentee ballots (98.2% counted) and 79,414 provisional ballots (84.62% counted),” according to the Ohio Secretary of State's website.

Most of the invalidated absentee and provisional ballots were rejected because the voter wasn't registered to vote, Husted said in a July 1 press release.

Relatively few were rejected because of informational errors, Husted said.

But the new rules are likely to disproportionately disenfranchise minority voters, the district court said.

It therefore struck down the informational portions of those laws in June, Clark said.

The state appealed to the U.S. Court of Appeals to the Sixth Circuit, “which heard oral argument earlier this month,” Clark said.

‘Golden Week.'

Another case argues “that legislation eliminating Golden Week (during which Ohio voters could register and vote all in one trip) violated the Constitution and the VRA,” Clark said, referring to Ohio Democratic Party v. Husted, 2016 BL 273144 (6th Cir. 2016).

Again, the district court agreed with the challengers, “and issued a ruling that would have reinstated Golden Week,” Clark said.

The elimination of Golden Week disproportionately burdened minority voters, the Southern District of Ohio said.

But the Sixth Circuit reversed that decision.

The initial adoption of Golden Week didn't establish “a federal floor that Ohio may add to but never subtract from,” the Sixth Circuit said, noting that nearly “a third of the states offer no early voting” at all.

“Absent further court action, Golden Week will not be in place for this year’s election,” Clark said.

The Ohio Democratic Party has asked the U.S. Supreme Court to reinstate Golden Week for the upcoming election. The need for a stay is “magnified given how close we are to the long-scheduled start of Golden Week,” the party said in its Supreme Court request.

The Supreme Court hasn't yet acted on the request.

Voter Purge

Finally, a third case challenges “Ohio’s removal of voters from the rolls for failure to vote,” she said.

Ohio purges voters that, among other things, fail to vote in any election for four consecutive years.

The plaintiffs allege that at least tens of thousands of voters have been purged in the last year, including disproportionate numbers of minority and low-income voters.

“The way Ohio has maintained its voter rolls for more than 20 years is constitutional and fully complies with state and federal laws,” Husted said in a July 7 press release.

And unlike in the previous cases, the district court agreed with the state and upheld the law.

The plaintiffs appealed, and the Sixth Circuit heard oral argument in the case at the end of July, in A. Philip Randolph Inst. v. Husted, 6th Cir., No. 16-3746, argued 7/27/16 .

A decision in that case is expected shortly, Clark said.

When that and other decisions come down, Ohio may finally be ready to predict the next president.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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