by Daniel Tokaji, Professor of Law; Senior Fellow, Election Law, OSU Moritz College of Law
The 2012 general election is more than a year away, but the Ohio legislature is doing its best to rig the rules of the game right now. Lawmakers are poised to approve a bill (Sub. HB 194) that would require voters to present government-issued photo ID, limit the opportunity for early voting, and make it more difficult for Ohioans to have their votes counted. This is a transparent attempt to suppress participation by voters who lean Democratic. Worse still is the underhanded process through which the Republican-dominated legislature has pushed through these changes. If enacted, the bill is certain to cause confusion for voters and poll workers alike – and will result in years of litigation challenging these infringements on the fundamental right to vote.
To understand how disruptive these changes will be, it’s helpful to provide some context. Following the 2000 election debacle, Congress enacted the Help America Vote Act of 2002 (HAVA). In addition to providing money to replace antiquated voting machines, HAVA imposed a limited ID requirement, requiring first-time voters to present either a photo ID or another document – like a utility bill, bank statement, or government document – with their name and current address. Current Ohio law requires all voters to present one of these forms of ID. Fortunately, most voters have such a document, and there are exceptions in the law for the few who don’t, so this requirement imposes only a modest burden on the right to vote.
There’s no evidence at all that current requirements are insufficient. In fact, the proponents of the current bill have failed to document even a single instance of voter impersonation in Ohio, the only alleged problem that this bill could even hope to solve. Even the bill’s main sponsor admits there’s no evidence of widespread voter fraud. Instead, supporters assert that the legislation is designed to deal with the perception of widespread fraud. But to the extent such perception exists – and they cite no evidence that it is – it’s entirely of their own making. For years, Republican politicians have justified their efforts to restrict the right to vote by exaggerating the reality of voter fraud.
In short, the current bill is a solution in search of a problem. But as most Ohioans remember, our state has had more than its share of real election problems in past years. Especially troubling was Secretary of State Ken Blackwell’s 2004 directive to reject registration forms on less than 80-pound paper weight. This decision became a symbol of Republican officials’ perceived attempt to make it more difficult for Democrats to vote.
The changes that Ohio is now considering would make Blackwell blush. Only certain forms of government-issued photo ID, such as a driver’s license, are allowed. While most voters have photo ID, approximately 11% of voters nationwide don’t have it. Among the groups that are least likely to have required ID are racial minorities, people with disabilities, elderly voters, and those of low income. Worse still, the Student ID’s – even from state schools – have been deliberately left off the list. This is unfortunate but not surprising, given that this group trends Democratic.
Ohio’s ID requirement would arguably be the most onerous of any state. Until recently, Indiana enjoyed the dubious distinction of having the nation’s most restrictive ID law. That law infamously kept 10 retired nuns from voting in 2008. Bad as Indiana’s law is, our neighbor to the west does more to accommodate low-income voters than Ohio’s appears to do. That leaves Ohio’s ID proposed requirement vulnerable to a legal challenge, if the legislature adopts it and Governor Kasich signs it into law.
The sneaky process that Republican lawmakers have followed makes their power grab even more noxious. The Ohio house rammed the ID bill through committee to a floor vote in less than a week, with little factfinding and even less deliberation. The legislature simply ignored the testimony of the many witnesses who testified about its destructive impact on voting rights.
The state senate process has been even worse. A hearing was originally scheduled for Wednesday afternoon, at which many opponents of the bill were planning to testify. In an apparent effort to short-circuit public comment, Senate Republicans inserted the requirement to another elections bill at a hearing on Tuesday. This prevented voters and voting-rights advocates from having their voices heard. To his credit, Secretary of State Jon Husted has condemned the action of his fellow Republicans in the state legislature. Nevertheless, the senate is reportedly poised to vote on the bill this week. A less fair process is hard to imagine.
The restrictive ID requirement would be bad enough by itself. But there are many other provisions of the current bill that will make it more difficult for Ohioans to vote and have their votes counted. They include the following:
$ Cutting back on in-person early voting, one of the best features of our current voting system. In a transparent effort to limit voting by the African American community – whose members often come to vote in groups after church – the bill prohibits early voting on Sunday. It also shortens by more than half the number of days for early voting, eliminating the five-day period for same-day registration and voting under current law. It thus eliminates one of the few mechanisms statistically proven to improve turnout.
$ Compromising voter privacy, by demanding that voters disclose of all nine digits of Social Security numbers, instead of just the last four, on registration and absentee voting documents. Although the bill says that this isn’t a public record, experience teaches us that it’s difficult to keep this personal information secret. If enacted, it’s likely that this requirement will lead to identity theft, if not tomorrow then some day.
$ Making the wrong-precinct problem worse. The bill would eliminate the requirement that poll workers direct voters to the correct precinct, if they appear at the wrong one. This is especially problematic where there are many precincts in one building, a problem so common that it has a name: the “right church, wrong pew” problem. It will also open up the possibility of different voters receiving different treatment, depending on the county or precinct where they happen to vote.
These are just a few of the unfortunate changes that the election bill would make. Taken together, the bill can be expected to result in more voters being forced to cast provisional ballots, many of which won’t be counted.
If this bill passes, Ohio will be well on its way to reestablishing its sorry reputation as the capital of voter disenfranchisement. The word “disenfranchisement” shouldn’t be used lightly. But as I’ve noted elsewhere, it’s the only way to fully capture the purpose and effect of this bill.
Sadly, Ohio isn’t the place where lawmakers are trying to disenfranchise voters this legislative session. Instead, the state is part of a national strategy through which Republican politicians across the country are trying to make it more difficult for Democratic-leaning citizens to vote, and thereby help increase their chances of holding power. Other states that have enacted vote-suppressive laws this year include Florida, Wisconsin, Texas, and Kansas– not coincidentally, all states in which Republicans control the legislative process. We’re sure to see litigation over these laws in the months and years to come, as voters go to court to protect their sacred right to vote.
In years since our troubled 2004 election, Ohio has taken great strides in improving its election system. This progress would be reversed by the current bill, whose enactment would be another huge embarrassment for our state. Ohio’s elected leaders should be doing all they can to make it easier for their constituents to vote, rather than imposing new burdens on our most fundamental right.