Details of Voter ID Lawsuit Consent Order

"Today was a good day for democracy," plaintiffs' attorney Subodh Chandra said to me late tonight as he drove back to Cleveland, after helping negotiate a consent order in the federal lawsuit challenging the new voter ID requirements in Ohio. "This is not a case without a victory. We achieved a consent order that contains major victories for voters." In particular, the consent order "ensures that thousands of Ohioans whose votes were at risk because of a vague statute, compounded by the secretary of state's failure to give directives (followed by a wrong and overly restrictive directive on the eve of the hearing), will be counted. This includes the many people who wrote down the number from their drivers license photographs, which would not be counted under the directive issued the day of the hearing."

Also, the directive treated people voting "absentee in-person" as if they were voting on election day and needed to show identification in addition to providing a license or social security number, "which was just wrong." The state "pushed hard for this, but in the end we got all absentee voters (mail and in person) treated the same." Military ID that has a social security number is sufficient to cast a provisional ballot that is required to be counted, without having an address on the ID. The word "current" as applied to documents like a utility bill is defined expansively (within a year before the election, not six months), and "utility bill" is defined expansively as well (including but not limited to such things as telephone and cell phone bills). "Government documents" is defined to include documents from any branch or subdivision of local, state, or federal government, so it includes public universities. Even a traffic ticket or a public library notice should qualify if it shows the voter's name and address. Moreover, boards of election were all over the place on interpreting these rules, and now there will be uniform statewide standards.

"I'm glad that the attorney general eventually came to understand the magnitude of the problem," Chandra commented, "We were headed for a major train wreck."

The consent order is only good for this election, but as Chandra pointed out, after November 7 we can expect to have a new governor, a new secretary of state, and new members of the General Assembly. The hope is that calmer, more rational minds can come up with a better system. In the meantime, Judge Algenon Marbley retained jurisdiction to enforce the consent order, so if there are any problems the attorneys can just come right back to him and get them straightened out.

It especially irked Chandra during the process that the lawyers for the state continually harped on the idea that the plaintiffs were "late" in pressing their claims. "None of this would have happened if proper directives had been issued," he said. "This is mostly an as-applied challenge. We weren't saying that the identification requirements are per se unconstitutional, it's how the requirements were applied to people who are trying to vote. Voting didn't start until October 3rd, and we filed suit on October 24th -- that's pretty fast in lawyer time."

"I really reject this suggestion that people whose rights are being violated shouldn't speak up because it is inconvenient for the state. The uncertainty in all of this is right at the feet of the secretary of state," Chandra went on. "The great irony here is that these same people who profess that they oppose government bureaucracy are the ones who are seeking to impose a byzantine system of bureaucracy on people. Whether they are sincere in their intent to avoid voter fraud, or mean simply to deter those who don't have an Amex gold card from voting, is not important. The way that these requirements were applied was still bad."

The statute "left huge gaps," Chandra explained. "We had real witnesses, people who would have been prevented from voting. One is Mrs. Denton, a homeless person whose little cousin was one of the girls killed in the church bombing in Birmingham, Alabama. She has voted in almost every election all of her life because she knew how hard people fought for the right to vote, and she was among those who were going to be disenfranchised. That ought to give the people in the General Assembly pause. When confronted with real, patriotic human beings who would be disenfranchised, there is no credible basis to impose their onerous restrictions on voting."

The good thing about having a consent order is that it cannot be appealed, so there is no uncertainty hanging over the resolution of the lawsuit. The only bad thing is that plaintiffs are unable to create the factual record that would have resulted from a hearing. The plaintiffs "would have showed that real people were falling through the statutory cracks," Chandra said, and also that the justification of preventing voter fraud is bogus because most county officials aren't planning to do any checking of the drivers license or social security numbers provided by voters.

After our long conversation, Chandra arrived at an oasis with wifi internet access, so he was able to send me a copy of the consent order as an attachment to an email message. The following is a summary of key provisions:

* Voters are required to provide their driver's license number, last four digits of their social security number, or other prescribed identification to obtain an absentee ballot, but once the ballot is filled out and returned (by mail or in-person) the boards of elections are required to accept it without such numbers or identification so long as it has the voter's name, address, date of birth, and signature.

* "Photo identification" is defined in such a way that a state drivers license or a state identification card can have a former address and still be acceptable.

* People voting on election day who don't have any of the statutorily required forms of identification (including those who have a military ID with a social security number but without an address on it) are relegated to casting a provisional ballot, by either providing the last four digits of their social security number or executing an affirmation, but such provisional ballots are required to be counted unless any of eight listed conditions are not met. These conditions are all quite straightforward (e.g., that the voter is registered, is eligible to vote in the precinct, hasn't already voted in the election, etc.).

* "Current," as applied to bills, statement, paychecks, etc., is defined as one year from the date presented for voting purposes.

* "Utility" includes but is not limited to water, sewer, electric, natural gas, cable, telephone, and cellular-telephone service. Since it is not limited to these, other similar bills like internet service should also be accepted.

* "Other governmental document" is broadly defined as documents with a current address issued by all branches of local government, all branches or subdivisions of Ohio state government, and all branches of the federal goverment, including without limitation public universities, colleges, and community colleges. Again, since it is not limited to these, other types of governmental entities like courts and public libraries should also count.

* The secretary of state and boards of election must communicate the terms of the consent order to all of their employees and post it on their web sites.

* The court retains jurisdiction to enforce the consent order.

After typing up this post I found that I had received a statement from the Ohio Democratic Party about the consent order, including these comments by ODP Chair Chris Redfern:

"The agreement still does not settle the question of why a voter does not need to show an ID before Nov. 7th but needs one on Election Day to cast a regular ballot. The disparity seems to cut to the very core of equal protection under the law and it is ridiculous on its face. However, Judge Marbley's order indicates that the Federal Court will be available to handle complaints that the agreement is not being followed, which should ease voter concern," said Chris Redfern, Chair of the Ohio Democratic Party.

“While nothing less than throwing out the entire Voter ID requirements will alleviate all of the confusion, we have seen some progress with this settlement and believe it is a partial victory. The confusion surrounding this year’s election only reinforces the need to closely examine these requirements after Election Day and to make sure we have a qualified Secretary of State, such as Jennifer Brunner, to finish the other half of the job.

“Ken Blackwell’s failure to do his job has created a situation where no directive could end confusion. We will have to wait until after the election to address the other multiple disenfranchisement problems with the Voter ID law. Until then, I urge voters to cast their ballot early. Early voting remains the only way to effectively ensure that every vote is counted."

UPDATE: Coverage in the Columbus Dispatch, Akron Beacon Journal, Cleveland Plain Dealer, Toledo Blade, and Buckeye State Blog.