FINDING: There are systemic problems with Ohio’s election system, which recent legislative “reforms” have exacerbated rather than ameliorated.

Since the 2000 election, election administration has emerged as an area in need of democratic reform. Like never before, the public spotlight has focused on the “nuts and bolts” of elections.

Ohio has been the subject of particularly intense scrutiny, given its pivotal role in the 2004 presidential election and decisions of the state’s chief election official, Secretary of State J. Kenneth Blackwell — a Republican and President Bush’s Ohio campaign co-chair — which attracted severe criticism. Among the subjects of controversy were:

• the equipment used to cast and count votes
• voter registration requirements and procedures
• voter identification requirements
• provisional ballots
• challenges to voter eligibility
• long lines at the polling place
• recounts and contests

While it is difficult to estimate with precision the number of votes lost due to these problems, these problems have caused some to question the result of the election, despite the final tally showing that President Bush defeated Senator Kerry by approximately 119,000 votes.
It is clear that the serious problems that emerged in the 2004 election have yet to be resolved. In 2005, the League of Women Voters of Ohio and more than a dozen Ohio citizens sued Secretary of State Blackwell and other state officials for failing to protect the rights of Ohio voters, as required under the Equal Protection and Due Process Clauses of the U.S. Constitution, and the Help America Vote Act of 2002 (HAVA). The League’s complaint chronicled deficiencies stretching over three decades, including widespread problems with the voter registration system, the absentee and provisional ballot processes, the training of poll workers, the organization of polling places and precincts, and the allocation of voting machines. The complaint alleged, for example, that thousands of Ohioans were unable to vote in November 2004 or just gave up because lines at many of their precincts were more than two hours and in some cases up to nine hours long. The case remains pending.

Earlier this year, the Ohio legislature passed a massive bill (Substitute House Bill 3, or “H.B. 3”) overhauling the state’s system of election administration. In many respects, as described more fully below, this new legislation threatens to make things worse rather than better.

There are also significant concerns about the implementation of new voting technology. Particularly troubling is the experience of Cuyahoga County in the 2006 primary, which has already been the subject of two detailed reports setting forth an array of problems in that county’s administration of elections. Because similarly comprehensive analyses of other counties have not been done, we simply cannot say for sure whether the problems found to exist in Cuyahoga County also exist elsewhere in the state.

A comprehensive analysis of election administration issues facing Ohio is well beyond the scope of this report. What follows instead is a description of some of the most pressing election administration issues confronting the state and its voters. This includes discussion of problems that emerged in the 2004 election, along with some of the important changes made by the Ohio legislature since then.

FINDING: Ohio’s restrictive voter registration rules threaten to impede eligible citizens from participating in the democratic process.

Among the major issues of contention during the 2004 election season were the rules governing the registration of voters. Particularly controversial was a directive from Ohio Secretary of State Ken Blackwell that registration forms had to be on at least 80-pound paper weight in order to be accepted. This directive was ultimately modified, under pressure from voting rights groups, but significant controversies over voter registration remained, including the treatment of registration forms on which certain information was missing or omitted.

Another issue that emerged in the 2004 election was phony registration forms allegedly
submitted by some groups, containing fictitious voter names such as Dick Tracy, Mary Poppins, and Jive Turkey, Sr. It has not been shown that anyone actually attempted to vote fraudulently under these false names. To the contrary, a joint report by the League of Women Voters of Ohio and the Coalition on Housing and Homelessness in Ohio found the incidence of fraud to be minimal — just four reported cases out of more than nine million voters, in the 2002 and 2004 elections combined.

A more serious registration issue that emerged in 2004 had to do with ex-felons, who under Ohio law are allowed to vote after they are no longer incarcerated. Voting rights advocates alleged that election officials were providing false information to former felons who, in fact, were eligible to re-register and participate in the 2004 election.

Ohio’s controversies over voter registration have not subsided since 2004. If anything, they have become more intense. Three voter registration issues of particular concern have emerged in 2006.

The first concerns a new provision of Ohio law, enacted January 31, 2006, as a part of the state’s massive overhaul of its election system. Under H.B. 3, newly registered voters’ names may have their names “marked” on the registration list if a postcard mailed by election officials to the voter is returned by the post office. Voters whose names are so marked can be required to cast provisional ballots that may or may not be counted.

The second issue has to do with the new statewide registration lists that are required by the Help America Vote Act of 2002. The idea behind this requirement is to make voting lists more accurate, by making it easier for counties to exchange information. While the idea is a worthy one, it is not at all clear whether Ohio’s implementation of this requirement will improve the accuracy of voter registration lists. Very little information about Ohio’s statewide registration list has been made public and the state did not respond to inquiries from the Brennan Center for Justice regarding the standards and processes for matching voter information against other lists. This is a critical question because an overly stringent matching requirement could result in eligible voters wrongly being stricken from voting lists. The lack of transparency with Ohio’s statewide voter registration list is very troubling

A third voter registration issue in Ohio has to do with the rules governing nonpartisan groups engaged in voter registration efforts. Reacting to allegations of nonexistent voters having been registered in 2004, the state enacted more onerous requirements applying to groups like ACORN and NAACP, whose mission is to help voters register. Voting rights advocates are also concerned by a rule promulgated by Secretary of State Blackwell, which requires every person helping voters register to return every registration form he or she collects within ten days, either in person or by mail, to the county board of elections or the Secretary of State’s office. In some circumstances, those who fail to comply with the new registration requirements could be charged with a felony.

These new rules have led to a lawsuit (Project Vote v. Blackwell), alleging that Ohio’s restrictions on voter registration drives violate the constitutional rights of voters and the groups seeking to help them register. On September 1, 2006, a federal judge in Cleveland issued a court order preventing these rules from going into effect.

FINDING: Ohio has failed to institute measures like in-person early voting to reduce lines on Election Day, and the confusing requirements for mail-in absentee voting may result in some people’s votes not counting.

In 2005, the Ohio legislature enacted legislation (House Bill 234) to institute “no fault” absentee voting throughout the state. Before then, Ohio voters wishing to vote absentee were required to provide a reason for not being able to go to the polls on Election Day, such as disability, military service, absence from the county, or a religious observance. No-fault absentee voting holds the promise of making voting more convenient, and many believe that it will increase voter turnout. It may also reduce the long lines that bedeviled the state in the 2004 election, particularly in urban areas of Columbus and in Knox County, home of Kenyon College, where some voters waited until the wee hours of the morning after Election Day to cast their votes.

Another possibility for reducing lines is to institute sample ballots, which are used in other states to let voters know before Election Day which candidates and issues will appear on the ballot. By facilitating voters’ ability to make choices before they step into the voting booth, sample ballots might reduce the time it takes each person to vote and, in the aggregate, make a dent on lines at the polls.

Unfortunately, Ohio’s liberalized absentee voting rule comes with an identification requirement. This requirement is sure to prove confusing to many voters, resulting in some people not receiving absentee ballots or, worse still, not having them counted. In order to obtain an absentee ballot, a voter must submit a written request to his or her county board of elections. With that request, the voter is required to provide identifying information. Those who have a driver’s license may provide that number, and those who have a Social Security number may provide the last four digits. Those who don’t have either of these identifiers, however, are required to provide a copy of an identifying document containing their name and current address. Examples of acceptable documents include a current utility bill, bank statement, government check, paycheck, or other government document — but not an election notice from the board of elections.

Once the director of elections receives this information, the voter should be sent an absentee ballot. But the voters’ obligations don’t end there. Along with the completed absentee ballot, voters are again required to provide identifying information — such as a driver’s license number, the last four digits of the voter’s Social Security number, or a copy of a document showing the voter’s name and address. It can be expected that a significant number of voters will fail to comply with these rules, resulting in their not receiving an absentee ballot or in having their absentee ballot rejected.

What happens if voters request but don’t receive an absentee ballot? Those voters are still permitted to go to the polls and vote. They will, however, have to cast a provisional ballot. During the 2004 election, the Ohio Secretary of State’s office erroneously provided guidance that voters would not be allowed to cast provisional ballots if they requested — but claimed not to have received or cast — an absentee ballot. This led to a court order requiring that such voters be allowed to cast provisional ballots in these circumstances. Under HAVA and current Ohio law, voters do have a right to cast a provisional ballot under these circumstances. The problem is that those casting provisional ballots cannot be certain that their votes will be counted.

FINDING: New laws on voter ID, challenges to voter eligibility, and provisional ballots are likely to frustrate voters and poll workers, while creating greater uncertainty in close elections.

Polling place operations proved to be a serious impediment to equal voting in 2004, and the problems have only worsened with the changes to Ohio law contained in H.B. 3. HAVA implemented a nationwide identification requirement, but it applied only to first-time voters who registered by mail. Under HAVA, those voters were required to produce some sort of identifying information at the polls.

Despite the absence of evidence showing voting fraud to be a serious problem, the Ohio legislature enacted a more stringent voter ID requirement, effective in the 2006 general election. In order to cast a regular ballot at the polling place, all voters will be required to produce some form of identifying document. Specifically, voters will have to show poll workers one of the following:

• A current Ohio driver's license or photo ID. If the address is not current, the voter may be asked to provide his or her driver's license number.
• Other current photo ID issued by the federal or state government showing the voter’s name and current address.
• A military ID with the voter’s name and current address.
• A utility bill, bank statement, government check, pay check, or other government document that shows the voter’s name and current address. (A mailed registration notice from the board of elections will not suffice.)

Voters who do not present one of these identifying documents will be required to cast a provisional ballot.

Another change in Ohio law, effective in 2006, has to do with challenges to voter eligibility at the polling place. This too was an issue that provoked controversy in 2004, with voting rights advocates concerned that the Republican Party would use the challenge process to intimidate eligible voters, particularly in minority communities. Ohio’s challenge process resulted in no fewer than four lawsuits before the November 2004 election, with four different judges issuing orders that limited or stopped those challenges. All of these orders were ultimately reversed on appeal, one of them on the afternoon of Election Day. Needless to say, challenges to voter eligibility were the subject of immense controversy for voters, poll workers, and election officials.

The good news is that Ohio has eliminated designated partisan challengers at the polls. The bad news is that challenges to eligibility may still be made at the discretion of poll workers, who are appointed on a party basis. Even worse, H.B. 3 added new language that discriminates on its face against voters who are naturalized citizens. Under the new law, poll workers challenging a voter’s citizenship may demand that the voter produce documents proving citizenship. If a naturalized voter’s eligibility is challenged, then that voter will be required to produce a certificate of naturalization at the polls in order to cast a regular ballot. Not many voters routinely take this documentation with them when they go to vote. Imagine, for example, a 75-year old grandmother who emigrated from China, became a citizen three decades ago, and has been voting regularly since then. If that voter is challenged and she does not produce her certificate of naturalization for inspection, then she will be denied a regular ballot. This discriminatory challenge rule now faces a challenge in federal court (Boustani v. Blackwell).* One of the co-authors of this report, Daniel Tokaji, is an attorney for plaintiffs in this case.

The changes to Ohio’s voter ID and challenge rules will put additional pressure on the state’s already troubled provisional voting system. That’s because voters will be required to cast provisional ballots instead of regular ones, if they lack an acceptable form of ID or if their eligibility is challenged at the polls and they cannot produce acceptable documentation. A provisional ballot, as the name suggests, is a conditional one — to be counted only if the voter’s eligibility can be established after Election Day. To make matters worse, H.B. 3 provides that a voter’s provisional ballot will only count if it is cast in the correct precinct. This is especially problematic for those who vote at polling places with multiple precincts. A voter can very easily appear at the wrong table by mistake and wind up having his or her vote rejected.

Ohio’s new rules regarding voter ID, challenges to eligibility, and provisional ballots can also be expected to create problems for those who are responsible for running elections — namely, poll workers and county election officials. Not only will more voters be directed into the provisional ballot pathway, but the rules for determining who must cast a provisional ballot have been made exceptionally complicated by H.B. 3. If a voter is required to cast a provisional ballot, then he or she has 10 days within which to produce any required information. County election officials will then have to determine whether or not those provisional ballots will be counted, in a short period of time.

The greater number of provisional ballots means more opportunities for parties and candidates to fight over the results after the election. At the same time, the compressed period for determining whether to count provisional ballots is likely to result in more mistakes being made — and unfortunately, some voters’ votes being improperly rejected. This can only diminish public confidence in the ultimate result. To make matters worse, H.B. 3 eliminated the option of contesting federal elections in state courts. For example, the losing candidate in a close U.S. House race is prohibited from filing an election contest under state law, even if election officials wrongly rejected or included ballots that would have made a difference in the race. This raises a very real possibility of the wrong person being elected to office — in the worst-case scenario, even the U.S. President — without that person’s opponent having any legal recourse.

FINDING: Partisan election administration is a serious problem in Ohio, one that demands reform.

Ohio’s Secretary of State Ken Blackwell played a controversial role in the 2004 election. Several of his decisions received intense criticism, particularly those having to do with provisional ballots, challenges to voter eligibility, and the paper weight on which registration forms were printed. It did not escape notice that Blackwell was an active supporter of President Bush’s reelection, and some accused the Secretary of State’s office of making decisions designed to benefit his party.

While it is easy to personalize such conflicts, it is important to recognize the important systemic issues that go beyond individual personalities. Like most states, Ohio’s chief election official is elected on a party basis. Whenever a chief election official is elected as a representative of his or her party, it raises the specter that the official will tilt the rules of the game to the advantage of his or her side. This was true of Blackwell in 2004 and of Florida’s Secretary of State Katherine Harris in 2000, but it is not only Republican secretaries of state who have been accused of partisanship. In California, for example, Democratic Secretary of State Kevin Shelley was forced to resign under a cloud of alleged improprieties, including accusations that he misused HAVA funds to benefit his own party.

In short, the need for nonpartisan election administration is an issue that ought to transcend party boundaries. There are at least two possible reforms that warrant consideration. One possibility is to transfer authority for supervising elections from the Secretary of State to a bipartisan board. Such a reform was included in Issue 5, which Ohio voters rejected in 2005, but it is possible that a different type of body might ultimately prove more acceptable to the electorate. Another possibility is for the state’s chief election official to be appointed instead of elected, with a super-majority of the legislature — say 75 percent — required to confirm the appointment, as Professor Rick Hasen of Loyola Law School has suggested. Such a reform would increase the likelihood that the state’s chief election official will avoid partisanship in his or her decisions and, hopefully, enhance public confidence in the integrity of the state’s electoral system as a whole.

State law should be amended to remove unnecessary barriers to registration and participation. The legislature should repeal H.B. 3’s discriminatory challenge provision and ID requirement, both of which raise the specter of racial and ethnic profiling at the polls. It should also consider adoption of in-person early voting and sample ballots, to relieve Election Day pressure on polling places and the long lines that come with it.

The transparency of the state’s registration database should be increased, so that citizens and their advocates can ensure that eligible voters are not wrongfully removed from the rolls.

Ohio should become a leader in moving toward nonpartisan election administration. Having a partisan election official ultimately responsible for elections cannot help but undermine public confidence in the results. Authority for running elections should be transferred to a non-elected chief election official who commands widespread trust, or to a board appointed in such a way as to ensure evenhanded administration of elections.