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Tuesday
Oct252016

Correcting Ohio's Voter Purge

Correcting Ohio’s Voter Purge:
Infrequent Voters Who Were Unlawfully Purged from Ohio’s Registration Rolls
Will Be Permitted to Vote in the November 2016 General Election

Background
For years, Ohio has been removing voters from the registration rolls if they have not voted in recent years under a procedure called the “Supplemental Process,” based on the assumption that such voters have moved—an assumption that is often mistaken. In 2015, Ohio purged hundreds of thousands of infrequent voters from its rolls under this process.

These voters had last voted in 2008—a year when Ohio experienced record turnout. Many voters purged in 2015 and previous years attempted to vote in the November 2015 statewide election and the March 2016 primary only to be denied their right to vote.  In September 2016, the Court of Appeals for the Sixth Circuit found that Ohio’s Supplemental Process violates a federal law, the National Voter Registration Act of 1993 (NVRA), which prohibits states from removing voters from the registration rolls due to the voter’s failure to vote. The Circuit Court then sent the case back to the District Court todetermine how to protect the right to vote for unlawfully purged voters in 2016. On October 19, 2016, the District Court issued an order determining how these unlawfully purged voters will be treated in the November 2016 General Election.

Which Purged Voters Will Be Eligible to Vote?
Purged voters who will be able to vote in the upcoming November General Election are those who:

  • Were purged under the Supplemental Process from 2011 to present;
  • Continue to reside in the same county where they were registered at the time that they were purged; and
  • Have not become ineligible subsequent to the time that they were purged (e.g., because of a felony conviction).

How Purged Voters Can Participate in the November Election
Voters who were unlawfully purged under the Supplemental Process will still be able to cast a vote that counts. They will need to vote in person at their county’s early voting site or at the polling location for their present address on Election Day. Such voters will be given a provisional ballot that will be counted for the November 2016 election. This ballot will also serve to re-register them at their current address.

There is one exception to the requirement that purged voters must vote in person. Purged voters who cannot vote at an early voting site or the polls because of illness or disability can contact their local boards of elections to request that a provisional ballot be delivered. In that circumstance, the board of elections will send two employees (one from each party to ensure there is no attempt to influence the voter) to deliver the ballot, provide assistance in completing it if necessary, and return the ballot to the board of elections, where it will be treated just as other ballots cast by purged voters.

Purged voters will not be able to vote by mail. Any unregistered voter who submits a vote-by-mail application will receive a notification of denial that states: “You may still cast a provisional ballot during [the] in-person absentee voting period at any appropriate early voting location or the county board of elections, or on Election Day at the correct polling place for your current address.”

The Secretary of State and county boards of elections will add information to their web tools for voters to give guidance to voters who are unable to locate their voter registration information. This guidance will inform voters: (1) that they may be able to cast a provisional ballot during early voting or on Election Day and have it counted, (2) how to contact their local board of elections, and (3) how to determine their polling location. In addition, the Secretary of State will add information to his web page for voters with disabilities concerning the voting opportunities available to such voters.


Voters can find their polling location by calling their county board of elections or searching online at:
https://www.sos.state.oh.us/SOS/Upload/sites/ballotTracking/ballotTracking.aspx?page=20547.

For more information see Directives 2016-39 and 2016-41 issued by Ohio Secretary of State Jon Husted, available at http://www.sos.state.oh.us/SOS/elections/electionsofficials/Rules.aspx.

Sunday
Oct232016

Illegally Purged Ohio Voters To Be Allowed to Vote

A Court Order Allows Voters Removed from the Rolls Under Ohio’s Controversial Voter Purge to Have
their Votes Counted in the Presidential Election

NEW YORK, NY: On Wednesday, a federal court ordered Ohio Secretary of State John Husted to allow the many thousands of infrequent voters the state has purged from the voter rolls over the last several years to vote in this year’s Presidential Election. The order protects the voting rights of Ohioans whose voter registrations were cancelled under a controversial program that was recently declared illegal by the U.S. Court of Appeals for the Sixth Circuit.

Earlier this year, the Ohio A. Philip Randolph Institute (APRI), the Northeast Ohio Coalition for the
Homeless (NEOCH), and Ohio voter Larry Harmon, represented by Demos and the ACLU of Ohio,
brought a legal challenge to Ohio’s purge of voters under that program, known as the Supplemental
Process, which cancelled the registrations of voters who failed to vote for a period of six years—even
voters who remained eligible to vote.

“The Supplemental Process has disproportionately removed voters of color from the registration rolls,”
said Andre Washington, president of APRI. “The right to vote—a right Americans have fought and died
for—simply cannot be treated as a use-it-or-lose-it right.”

Last month, the Sixth Circuit overturned a lower court ruling and declared that Ohio’s Supplemental
Process violated a federal law known as the National Voter Registration Act of 1993 (NVRA), which
prohibits states from cancelling a voter’s registration merely for failing to vote for a period of time.
“Today’s order is a monumental victory for Ohio voters,” said Stuart Naifeh, senior counsel at Demos.
“Even after the Sixth Circuit ruled that Ohio had violated federal law in removing infrequent voters from
the rolls, Secretary Husted would have denied thousands of eligible Ohioans the right to vote. We are
gratified that the court recognized that broader relief was required to protect the rights of Ohio voters.
Now those voters will be able to cast a ballot and have it counted in the upcoming election.”

The appeals court’s decision, issued on September 23, 2016, sent the case back to the lower court to craft a remedy that would halt the Supplemental Process and prevent voters who have been purged from being denied their right to vote. On Wednesday the District Court issued an order that requires the state to allowinfrequent voters to cast their ballots this November.

“Just last year, Ohio cancelled the voter registrations of hundreds of thousands of infrequent voters, and
we anticipate many of them will come to the polls in November with no idea they have been purged.
Yesterday’s order ensures these Ohio voters will be able to exercise their fundamental right to vote,” said Freda Levenson, legal director at the ACLU of Ohio. “We are encouraging voters across the State of Ohio to take the time to cast a provisional ballot if they find that their names are not on the registration rolls when they turn up to vote.”

Under the Court’s order, the State must:

  • update websites maintained by the Ohio Secretary of State and county boards of elections informvoters who may have been purged under the Supplemental Process that they may be able to vote by provisional ballot and have their ballots counted this November;
  • provide online and telephonic tools for purged voters to find out the polling location and precinct where they should go vote;
  • inform purged voters who apply to vote-by-mail that they may cast a provisional ballot at their early voting site or on Election Day; and
  • treat any provisional ballot cast in-person by a purged voter who has not moved or who has moved within the same county the same as if the voter were still registered.

“The Court’s action is a huge win for housing insecure, homeless, and other traditionally marginalized
voters,” said Brian Davis, Executive Director at NEOCH. “Because housing-insecure and homeless voters
often face obstacles getting to the polls, these voters are more likely to have been targeted by the
Supplemental Process, removed from Ohio’s registration rolls, and denied their right to vote. The order
will help ensure that the voices of these often under-represented voters are heard this November.”
The Court’s order applies only to the 2016 Presidential Election. The Court instructed the parties to
submit a schedule for additional proceedings on a permanent resolution of the lawsuit after the election.

###
ABOUT DEMOS
Demos is a public policy organization working for an America where we all have an equal say in our
democracy and an equal chance in our economy.


MEDIA CONTACT
Liz Flowers
Communications Consultant

Monday
Oct102016

Fighting Against Literacy Test in Voting in Ohio

by Megan Shanklin

This spring, NEOCH, along with the Ohio Democratic Party and the Columbus Coalition for the Homeless, filed suit against Ohio Secretary of State Jon Husted and the Ohio Attorney General regarding Ohio’s laws on counting absentee and provisional ballots. S.B. 205 and 216, which the Ohio General Assembly passed and Governor Kasich signed into law in 2014, added address and birthdate fields to the provisional- and absentee-ballot forms, reduced from ten to seven days the post-election time that provisional voters had to show proper identification and that absentee voters had to correct mistakes, and prohibited poll workers from filling out affirmation forms and identification envelopes unless assisting someone who explicitly asked for help on the basis of disability or illiteracy. Moreover, S.B. 205 and 216 imposed “perfect form” requirements, requiring elections boards to reject absentee and provisional ballots with any errors or omissions in the identification information, even when the voter’s eligibility could be determined. In 2014 and 2015, over 4,000 ballots were discarded because of such errors.

On June 7th, 2016, district court Judge Algenon Marbley agreed with NEOCH that these laws unconstitutionally violated voters’ rights. Secretary of State Husted appealled the ruling to the Sixth Circuit Court of Appeals, and oral arguments for the appeal took place on August 4th. We are still awaiting the appeals court ruling, but for now, the laws have been overturned. We are particularly grateful to our attorneys,[1] who put a lot of work into making sure that Ohio citizens retain our right to vote. I recently talked to one of our attorneys, Sandhya Gupta of The Chandra Law Firm LLC, about the case.

M.S: How much time went into prepping for this case? And what does preparation for a case like this entail?

S.G: A lot of time went into preparing for the case. After the district court Judge Marbley granted our motion for leave to file our supplemental complaint in August 2015, we quickly filed the complaint and then were on an expedited schedule to make sure that everything could be fully litigated and decided by November 2016, the presidential election. The process of discovery started, including sending document requests to the Defendants and subpoenas to many county boards of elections around Ohio. From the elections boards, we requested ballot applications from the 2014 and 2015 general elections. We went back and forth with the boards a lot and finally worked it out so that they provided the rejected ballot forms—both absentee and provisional. Some counties also gave us ballot forms that had been accepted and thus counted. Then, from January 2016 to March 2016, members of our legal team conducted many depositions of county Board officials. In the meantime, Defendants also sent Plaintiffs discovery requests, both document requests and interrogatories, to which we had to respond. The legal team also defended the depositions that the Defendants took of NEOCH executive director Brian Davis, Columbus Coalition for the Homeless board member Donald Strasser, and an Ohio Democratic Party representative.

As part of the process of fact-gathering, we also reached out to voters whose ballots had been rejected for the reasons we were challenging in the lawsuit. Some voters to whom we spoke were willing to testify at trial, but ultimately, after reaching an agreement with the Defendants, we obtained and submitted the voters' signed declarations in place of their oral testimony. 

Because of the expedited schedule, the discovery period ran right up against the start of trial, which started in mid-March and lasted over two weeks. During trial, the legal team worked each day to prepare the order of witnesses for the following day, prepare for and conduct the witness examinations, work with defense counsel to agree on which exhibits would be admitted, and the like. These were long days. 

The judge issued a decision in early June. At that point, the Defendants decided to appeal the judge's ruling; Plaintiffs cross-appealled. Briefing and oral argument were completed on an expedited schedule. The oral argument took place in Cincinnati on Thursday, August 4. 

M.S: If you could sum it up, what was your main argument against S.B. 205 and 216?

S.G: We had several arguments, but the main one was that provisional- and absentee-ballot voters' ballots should not be disqualified on the basis of minor mistakes and omissions, when those voters' identities could otherwise be verified. We argued that such disqualification was unconstitutional, because it put a severe burden on the fundamental right to vote without a sufficient state interest. We also argued that the requirement for full and accurate completion of the forms imposed a literacy test, which the Voting Rights Act prohibits. And we argued that the laws violated section 2 of the Voting Rights Act, because they disparately affected racial-minority voters.

In addition, we argued that S.B.205 and 216 violated due process by shortening the period after the election for people to correct mistakes on their ballot forms (from 10 days to 7 days), and by failing to give provisional voters notice of any mistakes. (Provisional voters were also unable to correct any errors other than lack of ID.) And we argued that the laws wrongly prohibited poll workers from helping voters fill out their ballot forms. Under the law, poll workers were permitted to help a voter fill out his/her form only if that voter asked for such assistance on the basis of blindness, disability, or illiteracy. We argued such assistance should not be restricted to a situation where someone asks on these bases. And it did not make sense to us that in order for a voter to know to ask for help on the basis of blindness and illiteracy, that voter would have to be able to read the sign that said so!

M.S: What was the defense’s justification of the laws?

S.G: The defense had no justification for why provisional and absentee ballots had to be thrown out on the basis of minor errors or omissions on the forms if a voter's identity could otherwise be verified. Defendants tried to rely on the positive aspects of asking for the five-fields information, for example, the fact that including this information on a provisional-ballot form could help register a voter for the next election, or that it could help locate a voter in the database. But these reasons did not explain why a registered voter's ballot had to be thrown out if a board could still identify the person. These reasons were also insufficient because they did not apply to absentee-ballot envelopes: absentee-ballot voters had already established their eligibility when filing out the initial application.

M.S: What were the actual effects of S.B. 205 and 216? Did these deviate from the intended effects?

S.G: As a result of the requirement in S.B.205 and 216 that provisional and absentee ballots could only be counted if the five fields were all filled out fully and accurately, thousands of ballots were thrown out in 2014 and 2015 without regard for whether the voter's identity could be verified with the information that was present and correct.

As for whether the effects deviated from the intended effects, we argued that the legislature did intend to disenfranchise people with these laws—specifically, racial minorities. Not only did we have testimony from a legislator stating that one of the supporter-legislators made racist remarks when the various election bills were being discussed, but also there was other indirect evidence that we believe, when taken as a whole, showed the legislature intended these discriminatory effects. 

We also argued there was intentional discrimination in how the Secretary of State implemented the law, including the fact that the Secretary took no action to investigate or correct the fact that larger, urban, more minority counties were disenfranchising their voters for errors that smaller, rural, more white counties were not. 

M.S: Can you expand on the inconsistency in the application of the law from county to county?

S.G: Among the counties that we examined in this case, boards of elections in smaller, rural counties, with greater populations of white voters, were more relaxed about counting ballots with five-fields errors than those in larger, more urban counties with greater populations of racial-minority voters. Thus, for example, if a voter had a mistake in her street number or street name, or accidentally put in the current date instead of her date of birth, and regarding many other types of errors, boards in those smaller counties would still count the ballot, while boards in the larger counties would reject the ballot. The Secretary of State's office admitted under cross-examination at trial that the Secretary never bothered to investigate this inconsistency of application. 

M.S: Judge Marbley ruled that the laws violated the 14th Amendment and the Voting Rights Act. Can you explain what that means?

S.G: The district court found the laws violated the 14th amendment because they caused a heavy burden on the fundamental right to vote without a sufficiently good reason. Specifically, this means voters who vote by provisional ballot or absentee ballot should not have their ballot thrown out just because they didn't complete the form perfectly, when those voters are otherwise qualified and their identity can be verified.

The Voting Rights Act prohibits voting laws that have a discriminatory effect on members of a protected minority group. Here, the district court concluded that the laws disproportionately burdened African-Americans, and that that burden was in part linked to the ongoing effects of past discrimination. 

M.S: How is this case related to recent cases in other states about voting rights, including North Dakota, North Carolina, Texas and Wisconsin? (http://www.neoch.org/voting-events/2016/8/2/voter-id-laws-struck-down-in-four-states.html) Why do cases like this seem to be so prevalent right now?

S.G: Some of the cases brought elsewhere raise some of the same types of claims we do—for example, claims under the Voting Rights Act, claims of intentional discrimination, claims of undue burden. While the specific state-law provisions that are being challenged in those cases are different from what we're challenging in this litigation, the trends in efforts to suppress the vote are strikingly similar. 

As for why these cases are so prevalent right now: both the North Carolina and Texas laws went into effect soon, if not immediately, after the U.S. Supreme Court gutted section 5 of the Voting Rights Act, removing the requirement that states with a history of discrimination first get Justice Department approval before enacting any changes in voting laws. That meant that states like North Carolina and Texas became free to do what they wanted, and the legislatures in those states lost no time passing restrictive voting laws that disproportionately affected (and/or had the intent to discriminate against) racial minorities. Other states like Wisconsin and Ohio, led by Republican legislatures, also passed restrictive laws around the same time. The laws were challenged, and now those challenges have made their way through the appellate courts.

M.S. Wrap-up: Literacy tests were outlawed 51 years ago by the Voting Rights Act because they were demonstrated to be obstacles preventing people of color from voting. Despite this, in 2014, Ohio’s legislature passed laws that disenfranchised people who failed to read and follow written directions perfectly. It is extremely disturbing to say the least that tactics from the past are being used now in the 21st century to disenfranchise citizens. We are so thankful for Ms. Gupta and the rest of the legal team who worked so hard to fight against these 2014 literacy tests and protect the right to vote for Ohio’s citizens. We are hopeful that the appeals-court judges will agree with Judge Marbley and we can go into the upcoming November elections knowing that Ohio’s voters cannot be arbitrarily denied their right to vote.


[1] Subodh Chandra and Sandhya Gupta of The Chandra Law Firm LLC (Cleveland) and Caroline Gentry and Ana Crawford of Porter Wright Morris & Arthur LLP (Dayton) represent NEOCH and CCH. Don McTigue and Derek Clinger of McTigue & Colombo LLC (Columbus) represent the Ohio Democratic Party.

Friday
Oct072016

Full Appeals Court Will Not Hear NEOCH Voting Case

Sets up a disparity between Provisional Ballots and Absentee Ballots in Ohio.  Lets Stand the Disparity Among the Various Counties in How They Interpret the Law.

The court has ensured that thousands of registered Ohio voters—whose eligibility county elections boards do not question—will be disenfranchised over trivial errors and omissions on ballot forms, like missing a zip code, writing a name in legible cursive rather than in block letters, etc.

The court has also tolerated a situation in which large, urban counties with the biggest percentages of minority voters are disenfranchising voters over trivial ballot-form errors and omissions—when the small, white, rural counties have been exposed as not doing so. For example, if you inadvertently leave your zip code off of your form in Cuyahoga, Franklin, Hamilton, Stark, or Lucas counties, you will be disenfranchised even if the board has no doubt regarding your eligibility, while Meigs and other small counties will count that same vote. How is that remotely fair? The court swept these undisputed, inconvenient facts in the record under the rug and did not even discuss them. The appeals court’s decision defies Bush v. Gore and its own prior precedent, and neuters the Voting Rights Act as well, which prohibits the disparate racial impact these practices represent.

The homeless coalitions do not understand how a judge—whose House-speaker husband the case accuses of leading racial discrimination, and constitutional and voting-rights violations—can feel free to participate in a court decision denying voting rights, or how this is the impartial justice our system promises.

Ohioans need to be incredibly vigilant when filling out absentee and provisional-ballot forms, because Secretary Husted is playing a game of disenfranchisement 'gotcha', rather than showing a devotion to counting every legitimate vote.

While we are studying our Supreme Court options, hopes for affected Ohio voters in this close presidential election may well be lost. Voters may never learn that their ballots were not counted.

Statement from Subodh Chandra and Chandra Law Firm

Here is the link to the Plain Dealer article

Friday
Oct072016

Appeals Court Decision Regarding Provisional Ballots

Homeless Coalitions appeal to entire federal Sixth Circuit Court of Appeals in challenge to Ohio’s perfect-form requirements for absentee and provisional ballots

 

Cleveland, OHIO – Today, the Northeast Ohio Coalition for the Homeless, Columbus Coalition for the Homeless, joined by the Ohio Democratic Party, plaintiffs in voting-rights lawsuit against Ohio Secretary of State Jon Husted and Ohio Attorney General Michael DeWine, sought to have all fifteen judges of the U.S. Court of Appeals for Sixth Circuit hear their challenge against Ohio voting laws known as S.B. 216. The laws require throwing out absentee and provisional ballots on trivial technical errors on ballot forms --even where elections boards do not otherwise questions voters’ identity and eligibility.

In June 2016, federal District Judge Algenon Marbley, of the Southern District of Ohio, ruled in favor of the plaintiffs’ claims that the laws violated the Constitution’s Fourteenth Amendment right to equal protection as well as the Voting Rights Act. The judge found that the laws burden the fundamental rights to vote without a sufficient state interest, and that the laws disproportionately impact African-American voters.

Defendants Husted and Ohio appealed the court’s decision, and the plaintiffs cross-appealed. Earlier this month, a three-member panel of the Sixth Circuit Court of Appeals ruled on the parties’ respective appeals.

The panel’s majority (Judge Boggs and Judge Rogers) upheld one piece of the plaintiffs’ relief, that pertaining to mirror errors with birthdates and addresses on absentee-ballot forms, but otherwise reversed the district court’s rulings for the plaintiffs. Judge Keith wrote a searing dissent recounting the long history of civil-rights struggle and chastising the majority for failing to defer to the district court’s factual finding of discriminatory impact.

Notably, in the piece the majority found for plaintiffs, the majority minced no words in nothing the utter absence of evidence of fraud – a justification Husted and Ohio had tried to push in their post-trial briefing, although there was no evidence the legislature was ever really concerned about it. The majority opinion states: “the district court was not presented with a shred of evidence of mail-in absentee-voter fraud…. (A) s is apparent from the record, there is no indication of a legitimate fraud concern at all.”

As a argued to the full court, although the panel majority got it right regarding absentee-ballot forms with date-to-birth and address errors, it failed to apply the same logic to other minor errors (such as identification or printed name), as well as to provisional ballots. Left untouched, for example, was Husted’s position that a voter who writes her name even in legible cursive letters in the name field should be disenfranchised merely for not printing.

Today’s petition to the entire Sixth Circuit (also known as an “en banc petition”) seeks to fix some of the majority’s inconsistences and other errors. The petition seeks review on the following bases

  • The Sixth Circuit is conflict with another circuit court, the Eleventh Circuit, regarding whether the plaintiffs – as opposed to only the Department of Justice – may challenge S.B. 205/216 under the Voting Rights Act’s so-called “materially provision” That provision prohibits denying the right to vote “because of an error or omission” on e.g., a voter’s application, “if such error or omission is not material in determining whether such individual is qualified under State law to vote….” This provision was a hard-fought victory of the civil-rights movement and intended to prevent just the sort chicanery Ohio is engaged in here. As a result of the circuit conflict, voters in presidential swing-state Florida, which is in the Eleventh Circuit, have more rights to defend against any assault on voting rights than voters in swing-states Ohio and Michigan, both in the Sixth Circuit.
  • The panel majority failed to address the perfect-form requirements regarding identification and printed name, only addressing the date-of-birth and address requirements.
  • The panel majority created a 14th Amendment equal-protection problem when it struck down the perfect-form requirements relating to absentee ballots, but upheld them as to provisional ballots, even where voters’ identity is not in dispute for either.
  • The panel majority also was at odds with Equal Protection Clause as well as U.S. Supreme Court (Bush v. Gore) and Sixth Circuit authority when it ignored the wildly disparate ways in which Ohio’s elections boards are treating absentee- and provisional- ballot forms (the white, more rural, Republican-leaning counties count ballots with mistakes on them while the more minority, urban, democratic-leaning counties toss ballots with identical mistakes).
  • The panel majority conflicted with Supreme Court and Sixth Circuit precedent when, to establish an equal-protection violation, it required a showing that the laws unduly burden all voters, not just a subset.
  • The panel majority conflicted with precedent when it failed to give due deference to the district court’s factual findings regarding the disproportionate impact of the laws on African-American voters.
  • The Sixth Circuit is in conflict with another circuit court regarding how to assess whether the state violated section 2 of the Voting Rights Act – namely, whether the court should examine the cumulative impact of the law’s restrictions or analyze the impact of each restriction separately.