By:  Mark Listes

Ohio is no stranger to changes in election administration and regulation. The Supreme Court determined the constitutionality of Ohio’s voter ID laws. The Sixth Circuit recently permanently enjoined the enforcement of Ohio’s campaign fair practice law that prohibited making false statements in campaigns. Ohio was highlighted in the 2004 election for extraordinarily long lines at its polls, and just eleven days before the 2014 midterm, the Sixth Circuit reversed the Southern District of Ohio, denying the right to vote to persons incarcerated but not yet convicted.

Upon conviction of a felony in Ohio, convicted persons lose their right to vote while incarcerated; however, people who are in jail at the time of the election but not yet convicted of a crime are still allowed to vote. The State Board of Elections accomplishes this by sending two representatives, one Democrat and one Republican, to the jail with absentee ballots. The incarcerated individual then fills out an absentee ballot and the team from the State Board delivers the ballot.

While this is an active effort on the part of Ohio to ensure that these individuals are not disenfranchised, the practical effect of the administration of this policy is that people jailed after 6 pm on the Friday immediately prior to the election are not able to vote because a request must be received before this time. If an individual is planning to vote in person and does not request and mail an absentee ballot and is then incarcerated but not convicted, that person will not have the opportunity to cast an absentee ballot.

In September 2014, Judge Spiegel of the Southern District of Ohio held the policy unconstitutional citing a wealth-based restriction on voting. The opinion reasoned that some people incarcerated in this window may post bail while others cannot afford to do so; this creates a dichotomy based only on wealth. People in the first group, reasoned Judge Spiegler, can post bail and then vote in person. People in the second group cannot afford to post bail and would not be able to vote in person or cast an absentee ballot. Wealth-based voter qualifications have been unconstitutional since 1966 when the court held that poll taxes were an unconstitutional voting regulation. Judge Spiegel saw this as an unconstitutional wealth-based qualification, and ordered that the state send teams to the jails during this window to accommodate these individuals and allow them to vote.

The Sixth Circuit then heard the case, however, and overturned the district court eleven days before the midterm elections. Judge Rogers of the Sixth Circuit held that there was no showing of a concrete and particularized injury on the part of the plaintiffs. Judge Rogers, writing for the majority, reasoned that the plaintiffs—organizations such as the AMOS Project  that were dedicated to increasing voter turnout during the 2014 midterms—were not directly injured. Therefore, the majority also vacated the district court’s order to accommodate these individuals during this special time period. Chief Judge Cole of the Sixth Circuit dissented, finding the AMOS Project sufficiently injured since it had to divert resources to fight the laws at issue.

At the district level, the plaintiff had argued that “at least 400 eligible Ohioans were unable to vote” in the last election because of the practical effects of the policies at issue in this case. The majority of major elections held in Ohio this year were not close enough to be affected by 400 votes. Incumbent Governor Kasich won the governor’s election by nearly one million votes. Congressional races were also handily won. Representative Johnson won by the closest margin, 19.6%, and this represented a voting differential of nearly 40,000 votes.

Due to this series of cases, however, Ohioans once again had to adapt to changing election procedures. This evidences another example of the ever-changing nature of Ohio’s election regulation.

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