Fighting Against 21st Century Literacy Tests for 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 Husted regarding the Ohio laws on counting absentee and provisional ballots.

The laws passed in 2014 by Ohio Congress and signed into law by Governor Kasich, S.B. 205 and 216, adds address and birthdate fields to the identification sections of provisional and absentee ballots, reduces the post-election time that provisional and absentee voters have to show proper identification from ten to seven days, and prohibits poll workers from filling out affirmation forms and identification envelopes unless assisting someone who explicitly asks for help on the basis of disability or illiteracy. Moreover, both S.B. 205 and 216 impose “perfect form” requirements, requiring elections boards to reject absentee and provisional ballots with any errors or omissions in the identification information, or where the information does not match the voter’s record in the statewide voter registration database. In 2014, more than 4,000 ballots were discarded because of such errors.

On June 7th, 2016, district court Judge Algenon Marbley agreed with NEOCH that these laws were an unconstitutional violation of voters’ rights. Secretary of State Husted did appeal the ruling, 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 attorney, Sandhya Gupta, who put a lot of work into making sure that Ohio citizens retain our right to vote. I recently talked to Ms. Gupta about the case and the work that she did for it. She explained to me the Plaintiff’s (NEOCH) main argument against these laws: “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,” in violation of the 14th amendment, “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.” Our attorneys also argued that due process was violated by shortening the period of time allowed to correct mistakes on ballots, and that it was too restrictive to limit poll workers to only assisting those voters who ask for help on the basis of disability or illiteracy.

As for the Defense’s justification of throwing out ballots with errors? Ms. Gupta put it pretty plainly – they didn’t have any. “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.”

As part of the discovery process in the case, our attorneys sent subpoenas to county boards of elections around Ohio. Most importantly, they were looking for rejected absentee and provisional ballot forms. They also received accepted ballot forms that they could compare rejected forms with. In looking at the ballots, Ms. Gupta explained to me that they found something interesting – the laws determining whether ballots should be discarded or accepted were applied inconsistently throughout the state.

”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.” Even worse, “the Secretary of State's office admitted that they never bothered to investigate this inconsistency of application.”

I asked Ms. Gupta whether the discriminatory and disenfranchising effects of S.B. 205 and 216 deviated from their intended effects. Her response? No, they didn’t. “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.”

The district court agreed that these laws were discriminatory, particularly against African-Americans, and put undue burdens on the right to vote without sufficiently good reason, thus violating both the Voting Rights Act and the 14th amendment to the Constitution.

Interestingly, Ohio is not the only state that has had battles over discriminatory voting laws in recent months. North Dakota, North Carolina, Texas, and Wisconsin have all seen voting lawsuits go through the courts in 2016. I asked Ms. Gupta about the prevalence of these types of cases right now, and she explained that “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 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.” With only a few months to go before the November election, voters’ rights in all of these states hang in the balance.

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 Legislators passed laws that discriminated against people who failed to read and follow written directions perfectly. It is extremely disturbing to say the least that tactics from the 19th century are being used now in the 21st to disenfranchise citizens. We are so thankful for Ms. Gupta and the rest of the Plaintiff attorneys 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.

Copyright Cleveland Street Chronicle September 2016 Issue 23.3 Cleveland Ohio