COLUMBUS, Ohio (CGE) - One week ago, Ohio State Rep. Bob Mecklenborg (R-Cincinnati) introduced the “Ohio Fair and Secure Elections Act,” a bill that will require voters to confirm their identities by presenting photo identification when voting on Election Day or by absentee in person at the Board of Elections. Mecklenborg said his bill is "a is a long overdue, important first step toward securing the integrity of the electoral process” that's "necessary to make sure every legitimate vote is counted.”
Dan Tokaji, an OSU law professor whose expertise on election law and voting rights is nationally known and widely respected, dissected Mecklenborg's bill, HB 159, like only an election-law coroner can. Tokaji, a specialist in election reform with widely respected expertise in voting technology, voter ID and provisional voting, wrote a 2,000-plus-word review of Mecklenborg's bill Monday, that provided background on the problem, debunks the arguments in favor of the bill, and anticipates the lawsuits that can be expected to follow if it passes.
Surgically filleting the bill, Tokaji concludes that although it has many important shortcomings, passing HB 159 in its current form will make it more difficult for eligible citizens to vote. "Sadly, this appears to be its only real purpose. Its passage would be yet another great embarrassment for our state."
Sponsor bill basics
Under current law, when voting on Election Day, a voter may submit as proof of identification a valid photo identification, a military identification, or a copy of a current utility bill, paycheck or other government document that shows the voter’s name and current address. Mecklenborg said in prepared remarks that his bill would require that all voters voting on Election Day or in person absentee to present photo identification in the form of an Ohio driver’s license, Ohio state ID card, a military identification, or a U.S. passport. For persons voting absentee by mail, acceptable forms of identification remain unchanged.
HB 159, co-sponsored by Lou Blessing (R-Cincinnati), awaits hearings in the House State Government & Elections. The legislation directs the Bureau of Motor Vehicles to promulgate rules on providing free state IDs to individuals who qualify based on indigence. It also allows any person who objects for religious reasons to having their photograph taken to vote provisionally and sign an affidavit of religious objection at the Board of Elections.
“The issue of voter fraud has been a prominent issue in Ohio’s elections over the past few years, and I believe that this legislation is a vital step toward a more accountable, accurate elections process,” House Speaker Pro Tempore Lou Blessing (R-Cincinnati), said.
The two sponsors argue that empirical data shows that photo identification has vast bipartisan support nationwide. They point to a 2006 Wall Street Journal/NBC poll showing that 81 percent of respondents nationwide supported photo identification requirements, compared with only 7 percent who opposed such a measure. Today, only eight states require voter photo identification, while legislation is currently pending in more than 20 other states. HB 159 borrows from Indiana and Georgia laws addressing voter identification, which have withstood constitutional scrutiny.
HB 159 is one of many proposals the Republican Caucus will introduce in the coming weeks to combat voter fraud and ensure a smooth, legal process for casting ballots. “Very shortly, we will be introducing a second bill dealing with many other aspects of the electoral process, including clarification of poll worker error and provisional ballots,” Mecklenborg said. “The second phase outlines a significant number of the reforms laid out by Secretary Husted recently, and we look forward to working with him on this issue.”
Tokaji weighs in
Tokaji, Associate Director, Election Law @ Moritz College of Law, recalls that in 2004, Ohio became infamous for making it difficult to vote and have one’s vote counted. Much of the criticism, he said, was directed at then-Secretary of State Ken Blackwell. "Now, Ohio House Republicans are attempting to go further than Blackwell ever dared," Tokaji quips. He says the bill is obviously intended to gain an advantage in the 2012 presidential election, when President Obama is expected to run for a second term. His reading of the bill is that it makes it harder for eligible citizens to have their votes counted. Ohio already has a tough voter ID law, he says, but the proposed bill would make the burden on eligible citizens more onerous, requiring that in-person voters present one of four specified forms of government-issued photo identification.
“Disenfranchisement” isn’t a word to be used lightly. But it is necessary to capture this bill’s purpose and impact." Tokaji says passage of this bill would restore Ohio's "unfortunate reputation as the nation’s capital of vote suppression."
The bill's basic problem, Tokaji notes, is that many eligible citizens don’t have the types of ID that the bill would require. Voter populations hard hit will be the young, elderly, disabled, and minority voters because they are much less likely to have the types of ID that Ohio’s new bill would mandate. If this new bill passes, he says it will destabilize the rules again, and "undoubtedly result in several more years of litigation, just as election officials and poll workers have become familiar with the existing requirements."
The obvious purpose of the bill is to keep eligible Ohioans from voting, he says. Given Ohio is currently in the midst of a fierce debate over whether to pass a bill that would take away public sector employees’ collective bargaining rights, Tokaji attributes political strategy to why the "ID bill’s sponsors are trying to sneak it through the back door, while Democrats and progressive activists are otherwise occupied." Ramming the bill through the committee, chaired by one of the bill’s sponsors, with little debate and even less fact finding, seems to be the strategy de jour.
While absentee voters don't have to produce the ID the bill calls for, those who cast absentee ballots in person, Tokaji says they are more likely to be Democrats or students who tend to vote Democratic, would be required to present one of the required forms of ID. The OSU law professor says Democrats are more likely to cast in-person absentee ballots, rather than vote by mail, and because of this fact, "those are the votes that the bill’s sponsors are seeking to suppress."
For students, many of whom joined the historic wave of voters who sent first-term Illinois Sen. Barack Obama to the White House in 2008, Tokaji says it's worth emphasizing the negative impact that this bill will have on younger voters. He says Ohio’s bill conspicuously leaves out student ID – even from a state university – as an acceptable form of voter identification. "Again, the reason is self-evident: College students are more likely to vote Democratic, and these are among the votes that the bill’s sponsors are seeking to suppress."
Expect lawsuits
Expect years of litigation if the bill becomes law, Tokaji predicts. Although the bill has a provision to provide free ID to indigent voters, many voters will not have the documents needed to get state ID handy – and may have to pay for them, Tokaji opines. The burden that the law would impose on voters lacking ID, who will have to stand in one line at the BMV only to stand in another at the polls on November 6, 2012, amounts to a tax on the voter’s time, the functional equivalent of what the Supreme Court struck down in a previous case.
Although Mecklenborg and Blessing point to the Indiana law their bill is based on, that the U.S. Supreme Court upheld, Tokaji says the sponsors aren't standing on the solid ground they think they're standing on. The decision by the nation's high court only involved a "facial challenge, leaving open the possibility that the law might be struck down as applied to specific voters or groups – like the nuns who were later turned away for having outdated IDs."
Should the bill pass, as it no doubt will given the large majorities Republicans have in the 129th General Assembly, Tokaji says rushing it through with scant evidence of voter impersonation fraud won't bode well when its challenged in court, as he says it will be. .
The possibility of a state constitutional challenge to the bill also exits. Ohio's Supreme Court could follow the lead of their Missouri court colleagues, who struck the Show Me state's law down under that state’s constitution. Even though the Ohio Supreme Court is ruled by Republicans, 6-1, Tokaji says "it’s hard to believe that the court could overlook the transparently partisan purpose behind Ohio’s proposed bill, particularly given the absence of evidence that in-person voter impersonation is a serious problem."
Section 2 of the Voting Right Act, race discrimination, could also be a basis on which to challenge the law in court, Tokaji says. What he dubs "new vote denial," a law that “results in” the denial or abridgment of voting rights based on race, could be at play with HB 159.
Tokaji says passage of the bill will cast a shadow over the 2012 presidential election, in which Ohio is again likely to be pivotal. "It will undoubtedly sow confusion for Ohio voters and poll workers alike, many of whom were just getting used to the current ID rules. It will surely result in a major increase in the number of provisional ballots cast, which will in turn increase the likelihood of post-election disputes over the result. It will increase both headaches and administrative costs for counties that run elections and the bureau of motor vehicles, at a time when they’re watching every penny. It will undoubtedly result in years of litigation."
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