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Plaintiffs in voting-rights case seek to extend consent decree constraining Ohio secretary of state's ability to restrict voting rights

Monday, July 8, 2013

The Consent Decree has saved thousands of votes from being discarded in each election cycle. Secretary Husted opposes extension, seeking freedom to rescind the enfranchising directives to county elections boards that his predecessor issued.

COLUMBUS, OHIO — Over Ohio Secretary of State Jon Husted's opposition, Plaintiffs Northeast Ohio Coalition for the Homeless, Columbus Coalition for the Homeless, and Ohio Democratic Party have filed a motion asking Judge Algenon Marbley of the U.S. District Court for the Southern District of Ohio to extend a voting-rights Consent Decree that the plaintiffs obtained in April 2010. The Decree was issued in the case now captioned as Northeast Ohio Coalition for the Homeless, et al. v. Husted, et al., Case No. 2:06-cv-896, originally filed in the fall of 2006 against then-Secretary of State J. Kenneth Blackwell. The Decree was set to expire on June 30, 2013, and Judge Marbley has temporarily extended it, pending an oral argument scheduled for July 12, 2013 at 2:00 pm in Courtroom 1 of the U.S. Courthouse, 85 Marconi Blvd., Columbus, Ohio.

The Decree resolves concerns about the impact of Ohio's voter-identification statute by requiring the Secretary to direct Ohio's 88 county election boards to use uniform rules that broadly define acceptable forms of ID, and to otherwise ensure that Ohio's 88 county boards of election do not restrict legitimate voters from voting. Husted's predecessor, Jennifer Brunner, issued such enfranchising directives, which the Consent Decree incorporates and gives the force of federal law.

The Decree protects those voters who lack the state-mandated forms of ID (such as a utility bill, bank statement, or current driver's license reflecting a current address) that effectively require a person to have financial means. The Decree ensures that while those who provide social-security numbers to prove their identities must vote using a provisional rather than regular ballot, those provisional ballots will be counted. It addresses concerns that the voter-ID law was effectively a poll tax by requiring voters to pay for other forms of ID and by disenfranchising voters who are poor or transient. For example, many poor people do not have utility or bank statements, which cost money, in their names.

The Decree further requires the Secretary of State to direct Ohio's 88 county elections boards to count certain provisional ballots where government poll workers have made mistakes. For example, boards must count ballots where poll workers wrongly direct the voter to cast a vote in the wrong precinct, but right polling place. Evidence submitted in court shows that those were common government-worker errors and that the Consent Decree resulted in thousands of such votes being counted. Judge Marbley and the U.S. Court of Appeals for the Sixth Circuit blocked Secretary Husted's attempt to not count such votes in the November 2012 election.

Deposition testimony in the case from county elections officials across Ohio shows that before the Decree, elections boards were applying widely varying rules to decide whether provisional ballots would be counted, thus disenfranchising thousands of voters. The Decree resolved that confusion by requiring counties to use broadly enfranchising, uniform rules in determining provisional ballots' validity. One example of the Decree's franchising effect includes the requirement that elections boards honor as "government ID" letters from public universities for college students.

Counsel for the homeless coalitions, Subodh Chandra of Cleveland, said, "The Consent Decree has provided broadly enfranchising, uniform guidance to Ohio's 88 county elections boards, protecting the right to vote. It has prevented the Secretary and boards from disenfranchising legitimate voters and treating voters unequally. Unfortunately, Ohio's General Assembly has failed to make the Decree's protections any less necessary today than when the Decree was issued. If the Secretary and Attorney General (on the State's behalf) oppose this, one should ask why they want to be so free to restrict voting rights, in contrast to the bipartisan approaches of Secretaries of State Blackwell and Brunner, and Attorney Generals Petro and Cordray. (They all entered into earlier decrees.) And one should demand to know why Husted and DeWine won't promise to preserve protections or even tell us what changes they are planning."

In 2012, Secretary of State Husted and Republican Ohio legislative leaders Thomas Niehaus and Louis Blessing, Jr. sought to vacate the Decree before its scheduled expiration date, but Judge Marbley and the Sixth Circuit Court of Appeals, shut those efforts down.

Caroline Gentry of Dayton from Porter Wright, and Subodh Chandra and Sandhya Gupta of Cleveland, represent the homeless coalitions. The Ohio Democratic Party, which has joined in the motion, is represented by Donald J. McTigue of Columbus.

Related Practice Areas
Constitutional LawVoting RightsRace Discrimination

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