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, 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? (/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.
 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.