Victory in Court over Homeless Participation in Voting

We only filed a motion to protect our voting settlement  on Tuesday morning, and already the Federal Court Judge has ruled that Judge Marbley should maintain jurisdiction over this case and the State of Ohio cannot file in State Court to undermine an agreement made with NEOCH.  We have posted the press release on our blog here about the case.  I think a timeline of what has happened with regard to voting in Ohio will give a glimpse into how this can only be seen as voter suppression activities.

Late 2005/Early 2006:  Republican Governor, the Republican Secretary of State, and Republican dominated state legislators passed a huge change in voting in Ohio including a provision forcing people to show their ID in order to vote.  This came soon after the Supreme Court had allowed an Indiana voter ID law to stand.  The positive was that we got Golden Week (five days in which you can vote and register at the same time), but despite having no evidence of voter fraud Ohio passed voting changes. 

Through Most of 2006: Activists sued the state over these voting changes.  Most of these cases were defeats for the State of Ohio including the League of Women Voters, immigrant groups, and unions all prevailing.  There were many charges that these changes in the law limited voting by seniors, homeless people, minorities, naturalized citizens, and students, which except for seniors (collatoral damage) were all traditionally Democratic voters. On the eve of the 2006 election, NEOCH signed a temporary agreement of our lawsuit with the State and Secretary of State Ken Blackwell had to send out a directive instructing local board's of elections to clarify the rules for accepting identification. 

Eve of 2008 Election:  The 2006 Blackwell agreement had expired.  New Secretary of State Jennifer Brunner had issued a directive early in her administration clarifying voting issues including identification at the polling places on election day, but we still did not have a settlement.  In my opinion, the reason that the settlement took so long is that so many people were involved in the agreement.  The Republican dominated State Legislators sent a "baby sitter" to monitor the agreement.  There was an attorney for the Ohio State Legislators who monitored the settlement talks and was ever present in negotiations.   There was no way to work out an agreement and so another temporary agreement was struck just for the US Presidential election of 2008. This settlement dealt with the voting ID as well as a new issue of how provisional ballots are counted in Ohio. We had found wide disparity in the counting of provisional ballots with some counties counting 15 to 20% while others counted 60 to 70% of the provisionals.

2010 State Elections:  As Secretary of State Jennifer Brunner was leaving her position, she cleared most of the outstanding court fights with groups around the state.  The NEOCH settlement was one of the last, and all the agreements were set to expire in 2013.  All settlements were also dissolved if the State of Ohio passed new voting legislation.  We signed the agreement in April 2010 ahead of the state elections in November.  This instituted the 2008 Brunner Directive and standardized the counting of provisional ballots.  This enforced uniform standards for counting provisional ballots so that if the poll worker made a mistake that would not impact the validity of the ballot.  All parties were aware of the settlement and while we did not get all we wanted we signed the agreement.  It was my impression that lawyers for the State legislators, Attorney General, and Secretary of State all were informed of the settlement.  I did not hear any objections from any parts of the state.

2010 Cincinnati Election: Our settlement was in place, and all seemed to run smoothly with the election except in Cincinnati.  A juvenile court judge race was extremely close and there was a mandatory re-count because the margin of victory was so close.  Republican John Williams led by 23 votes over Democrat Tracie Hunter.   Hundreds of provisional votes had not been counted because there was a disagreement on the rules for counting these ballots.  In one of the most vicious filings by the Hamilton Board of Elections, they wanted to disregard our agreement because they had not signed off on it and did not think that a Cleveland group  should govern how Cincinnati runs an election.  Reading that brief was as though it had been written by the coach of the Cincinnati Bengal's talking about a snow ball incident at the stadium in a game against the Cleveland Browns.  Judge Susan Dlott ruled in favor of Ms. Hunter in her request to use the NEOCH settlment as guidance for counting all the provisional ballots in February 2012.  There was a split in the Board about appealing the ruling with Republican Secretary of State voting with the Republican members of the Board to appeal the ruling.  In April, the Appeals Court decided that the Board must count the ballots according to Judge Dlott's ruling, and they cannot wait until the Appeals Court makes its ruling (which could be a year away).  The voters were counted in late April and as expected the election was reversed and Hunter beat Williams by 71 votes.  One irony was that the Republican, Williams, was appointed to another Juvenile court judgeship last year.  This means that Hunter and Williams will serve together after the recount is conducted. 

2012 State Intervenes: Almost immediately following the Appeals Court decision, the State legislators Republican Tom Neihaus and House Republican Leader Louise Blessing sued Ohio Secretary of State and Republican Jon Husted in State Court over the signing of the April 2010 settlement.  The state legislators claim that this settlement in federal court undermines the State Legislators ability to pass laws that govern voting in Ohio. 

“Ohio’s elections should be administered under the laws established by an elected General Assembly," Niehaus and Blessing said in a joint statement today. "Unfortunately, due to the actions of the former secretary of state, the state’s chief elections officer has been compelled to issue directives that conflict with state law, particularly in the area of counting provisional ballots."

It has to be stated that the state court is dominated by Republicans, and in my opinion this was a way to undermine an agreement signed with a Democratic Secretary of State Jennifer Brunner and in a federal court before a judge appointed by Democrat Bill Clinton. 

Yesterday, Federal Judge Algenon Marbley quickly intervened to force the legislators to dismiss their state lawsuit, and argue their case in federal court.  Here is how the Cincinnati Examiner viewed Marbley's order:

Judge Marbley held in his ruling that there could be “no reasonable dispute” that as leaders of Ohio’s General Assembly suing in their “official” capacities in the name of the State of Ohio, Niehaus and Blessing were acting as agents of the State of Ohio,  despite the State‘s prior agreement to enter into the Decree. Marbley said  in his decision that federal courts would be  protective of “the right of the franchise” and invoked the federal All Writs Act that enables federal courts to protect their  jurisdiction and judgments against interference.

2011 Legislation:  Republicans retook the Ohio House of Reprehensives and now held the Governor's office.  They passed even more restrictive voting legislation that would limit even further traditionally Democratic voters.  These new laws included:

  1. Shrinking the number of early voting days by half.
  2. Eliminating Golden week (which Republican dominated Counties had contested and lost in court in 2008).
  3. Eliminating early voting the weekend before the election in person.
  4. Eliminating the ability for poll workers to be required to give correct precinct information to voters (This would have undermined our settlement with counting provisional ballots due to poll worker error.)
  5. Eliminating the ability to open on Sunday for local Boards of Elections.
  6. Eliminating to send out early voting applications by local County Boards.
  7. Tightening voter ID provisions to eliminate other forms of ID that had been previously accepted.

Activists, unions, the League of Women Voters, and Democrats strongly opposed this legislation.  They mobilized a petition drive and were able to get the measure on the November 2012 ballot.  The State legislators retreated and struck down the previously passed legislation, but kept the rules for closing the weekend before this critical Presidential election. The intention was to take away the ballot initiative for November 2012.  Activists led by former Secretary of State Brunner claim that they will sue to keep the ballot issue and will try to get voters the ability to vote the weekend before the November election. 

In my personal opinion just laying out the timeline shows an attempt by one political party to depress the vote. It was amazing that different counties were setting up vastly different rules for counting provisional ballots.  Our problems in Ohio were long lines and voter registration problems, and we have still not addressed these problems.  It seems as though one group has attempted to not count votes, put up barriers to voting, and limit the time and number of places people can vote. 

Brian Davis

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