By: Emma McCarthy

For voters in the state of Ohio, the 2018 Election held in the balance the future of the state’s governance. With major state offices including the Governorship, Secretary of State, and Attorney General all up for grabs, every vote mattered as the next four years of state governance in Ohio was in question. That’s one of the reasons why, on November 6th, the Campaign Legal Center, MacArthur Justice Center, and think tank Demos filed an emergency lawsuit and temporary restraining order in the U.S. District Court for the Southern District of Ohio, asking the court to require state officials to inform individuals currently jailed about their right to case an absentee ballot. In Ohio, absentee ballot requests were due November 2nd, leaving any individual jailed after that time without ability to exercise their right to vote. Therefore, the suit was filed to in order to compel the state to deliver ballots to those individuals jailed, giving them the opportunity to exercise their right to vote.

According to the Ohio Revised Code, any individual who otherwise meets voter qualification requirements but is unable to vote due to confinement in jail, is eligible to request an absentee ballot. Citing Ohio Department of Rehabilitation and Corrections data in their complaint, the plaintiffs point not only to themselves as pre-trial detainees, but to the approximately 11,123 other individuals being held in the state of Ohio daily in pretrial detention as voters disenfranchised by Ohio’s current absentee ballot request process. While Ohio law does have a carve out for individuals in emergency situations to request absentee ballots after the deadline has passed up until 3:00 pm on Election Day, this same procedure is not afforded to pre-trial detainees. As such the plaintiff’s (and other members of the class) have had their fundamental right to vote overly burdened by the state in the state having no means available for detainees to vote after the statutory deadline.

In addition to the plaintiff’s fundamental right to vote being violated, there were also first amendment freedom of expression and fourteenth amendment equal protection violations included. Each of these claims, if litigated in court, would almost definitely receive strict scrutiny, meaning a state must have a compelling reason to restrict an individuals’ right and the statute restricting the right must be narrowly tailored to meet that reason. In examining the Ohio Revised Code sections applicable to this case and its legislative history, there seems to be no compelling reason for the state to not apply the same type of emergency absentee ballot requests to prisoners as can be obtained for other emergency situation. Looking to the narrow tailoring of the statute, the statute is both too broad and too narrow. It is too broad in that it applies the same absentee ballot request deadline to absentee ballots requests for any of the enumerated situations in the statute, but it is too narrow in its definition of emergency situations in which an extension of the deadline is permissible. Due to the fact that the statute does not meet either the compelling interest requirement or the narrowly tailored requirement, the deprivation of first amendment and fourteenth amendment rights to pre-trial detainees detained after the absentee ballot request deadline, is unconstitutional.

Although the issue of pre-trial detainee voting rights was brought to the attention of the Secretary of State’s office in October, no action was taken to remedy the voter disenfranchisement until this emergency complaint and temporary restraining order was filed. However, following the complaints filing, Judge Watson, of the U.S. District Court for the Southern District of Ohio granted the temporary restraining order for the named plaintiffs and others similarly situated. Judge Watson found the risk of harm to amount to the abridgment of the right to vote and the burden on the State to provide these ballots to be minimal. While these plaintiffs were saved from disenfranchisement, the issue remains on a larger scale in Ohio and in many states throughout the country, what happens in the next election, when the same issue is presented. Will pro-active litigation ensue to remedy the problem or perhaps a statutory amendment? Or will pre-trial detainees again be forced to seek emergency restraining orders in order to protect their most fundamental rights as American citizens?

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