Federal Judge Strikes Down Election Law Provision That Discriminated Against Naturalized Citizens

For the second time, a key provision of the Republican so-called "election reform" law, HB 3, has been enjoined by a federal court as unconstitutional. Previously stricken was the severe restriction on voter registration drive. Yesterday it was Ohio Revised Code Section 3505.20(A), which would have empowered polling place officials to selectively require naturalized citizens to produce documentation of citizenship in order to cast a regular ballot. A third HB 3 provision, the requirement of voter ID, is being challenged in court as well. It is time to hold Republican lawmakers and officials to account for passing and failing to voluntarily curtail this farcical travesty of a law.

As reported in the Cleveland Plain Dealer today, U.S. District Judge Christopher Boyko (a George W. Bush appointee) blasted the provision during his ruling, saying it had the potential to treat naturalized citizens as "second-class Americans":

This gives poll workers the uninhibited right to choose the person to challenge based on their accent, look, manners or whatever they feel like on that given day . . .

You could have poll workers decide they want to target Arab-Americans, Asian or African-Americans on any given polling day without guidelines. How offensive it would be to be singled out for challenge based on your accent or look . . .

Without naturalized citizens, there wouldn't be an America. If this is the way the state of Ohio says thank you, they should reconsider.

Secretary of State Ken Blackwell (R-Cincinnati) responded to the suit by conceding that the provision on naturalized citizens is unenforceable. Blackwell consented to the permanent injunction, which requires written notification to Boards of Elections across the state and the posting of notices at polling places that proof of citizenship is not required. Boyko will publish his ruling as a formal judicial opinion, which will help publicize this legal precedent and deter other states from trying to impose such a requirement.

Subodh Chandra (D-Cleveland), a primary candidate for state attorney general, worked with the ACLU, the Brennan Center of Justice, and the Lawyers' Committee for Civil Rights in filing this case. In an email message last night, Chandra wrote that "we always knew we had a strong case," and apparently would have won even without Blackwell's capitulation. Chandra noted that Boyko found "there was no evidence of legislative intent as to why the legislature enacted this." Boyko also expressed a frank concern about profiling, "pointing out that poll workers are given no standards for whom to challenge--they might do it based on accents, customs, dress, or for just 'not looking quite American.'"

Chandra also related that Boyko had recently sworn in a class of naturalized citizens and "spoke about how at swearing-in ceremonies, new citizens are urged to register to vote. Often, they are registered on the spot. Judge Boyko spoke about how fundamental the right to vote is and about treating all citizens equally." Especially moving to Chandra was Boyko's comment that "[t]here can be no second-class citizen or second-class American as far as any court is concerned. ... Quite frankly, there wouldn't be any America without naturalized citizens."

I agree completely with Chandra in posing the following questions that demand to be answered "about how such an affront to the Constitution happens to become Ohio law":

(1) Who was responsible for this provision?
(2) Why did they pass it even though my co-counsel, Professor Dan Tokaji of the Ohio State University Moritz College of Law, a nationally recognized voting-rights expert, testified against the provision and warned the legislators that this was unconstitutional? Why did they ignore him?
(3) Why did the governor sign it in to law?
(4) Why were there no apparent warnings from the attorney general about unconstitutionality?

And in addition:

Finally, who is going to move to repeal this unconstitutional law from the books? Is the General Assembly capable of leaving naturalized American citizens alone at this point?