BREAKING - 6th Circuit Stays Temporary Injunction Against Voter ID Law

The U.S. Court of Appeals for the Sixth Circuit has issued an order staying the temporary restraining order issued last week against the new voter ID requirement as applied to absentee voting. The apparent effect is to reinstate the directive issued by Secretary of State Ken Blackwell (R-Cincinnati) on the eve of the TRO hearing, which imposed certain new interpretations of vague terms in the voter ID law.

More details to follow.

UPDATE: I have reviewed a copy of the appellate court's order, which (1) denies plaintiffs' motion to dismiss the appeal; (2) grants the motion by the State of Ohio (i.e., Attorney General Jim Petro) to intervene in the case; and (3) stays the TRO "except to the extent that the TRO orders all County Boards of Election to preserve all absentee ballots in their present form." The order states that the court "will issue an opinion shortly" but that opinion is not yet available.

Subodh Chandra, an attorney for plaintiffs, is working on a motion to stay the ruling, and an subsequent appeal to the U.S. Supreme Court is possible. Meanwhile, plaintiffs' motion for a preliminary injunction is still scheduled for Wednesday, although the appellate court's opinion may cause that to be cancelled depending on the precise contours of the appellate court's ruling.

This development is a catastrophe for the upcoming general election. Absentee voting is extraordinarily heavy, and plaintiffs have already established that boards of election are applying the vague requirements of the law in an inconsistent manner. Blackwell issued a directive on the morning of the TRO hearing that only exacerbated the situation by adopting interpretations of several provisions that are more restrictive than instructions previously issued to absentee voters by boards of election around the state. Thus, voters who have already submitted absentee ballots in accordance with instructions from lawful election authorities are at risk of not having their votes counted.

Specifically, Blackwell's new directive is problematic in the following ways:

• Blackwell starts out with a summary of the forms of voter identification authorized by statute but inexplicably omits one whole category ("current and valid photo identification"), thus conflicting with the law and generating more confusion;
• Blackwell arbitrarily defines "current" identification as meaning that it was issued no more than six months before the election, not taking into account that water bills (one possible form of identification) are issued quarterly. The directive does not address what happens to absentee ballots already submitted on the basis of identification more than six months old;
• "Other governmental documents" is defined as local, state, or federal government documents, but this formula doesn't clarify the status of public university documents (as may be submitted by college students), county documents, and documents from transportation authorities or other quasi-governmental entities;
• Blackwell restricted the use of a drivers license number to the shorter number on the left side of the license, not the longer number printed over the photograph, despite evidence that a significant number of voters have already submitted absentee ballots on the basis of the longer number;
• Blackwell compounds the problem concerning military ID by repeating the statutory reference to military identification with a current address, when such identification does not in fact include an address;
• Contrary to the statute, Blackwell's directive requires in-person absentee voters to present identification rather than just provide a drivers license number or the last four digits of their social security number from memory, as mail-in absentee voters may.

Thus, absentee voters who have already submitted their ballots are at risk of not having their votes count if they failed to anticipate Blackwell's interpretation of the statutory requirements, whatever local elections officials may have told them. When I asked Chandra how readers should react to this deplorable situation, he said simply that "people need to vote in overwhelming numbers to overcome these shenanigans."

As to people who have already voted in ways now deemed unacceptable, their testimony is needed for Wednesday's hearing. Plaintiff's attorneys are determined to build a strong factual record of the continuing confusion and chaos that the appellate courts will not be able to ignore. Potential witnesses should contact the attorneys by writing to VotingProblems@gmail.com. See this post for more information.

2nd UPDATE: Coverage in the Cleveland Plain Dealer, Columbus Dispatch, and Akron Beacon Journal.