Bethany Sanders
May 11, 2006
A Time of Great Change: The Effect of HB3 on League of Women
Voters of Ohio v. Blackwell
I. Both HB3 and LWVO v. Blackwell represent significant change and uncertainty in Ohio
election law.
At this point in time election law in Ohio is in a state of flux. In addition to working
towards to the federal requirements of HAVA, Ohio is facing internal election turmoil due to a
federal law suit and a massive election reform act which will begin to take effect on May 2,
2006. Either of these actions could result in significant questions, the combination makes the
situation particularly uncertain. In order to understand what ramifications could result from the
League of Women Voters v. Blackwell suit (the law suit or the suit) and the recently enacted
House Bill 3 (hereinafter HB3 or the act), this paper will address how HB3 would shape any
injunctive relief granted should the plaintiffs be successful in the law suit.1 This will be
accomplished by first, conducting an overview of the law suit and HB3. Second, examining
areas both items address in detail. Third, analyzing the overall implications in terms of how
relief could be fashioned in light of HB3. Regardless of the eventual fate of the suit reviewing
the claims made while comparing and contrasting them to changes made in election will be
useful in evaluating the overall picture of election law in Ohio.
1
League of Women Voters of Ohio v. Blackwell was originally filed on July 25, 2005 in the
district court for the Northern District of Ohio; the amended complaint containing the full request
for relief was filed on November 30, 2005. All the case documents are available at
http://moritzlaw.osu.edu/electionlaw/litigation/lwv05.php as part of the online forum Election
Law at Moritz. The bill is officially known as Amended Substitute House Bill Three was singed
into law on February 2, 2006. The full version as well as links to relevant analysis can be found
at http://www.legislature.state.oh.us/bills.cfm?ID=126_HB_3.
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Bethany Sanders
May 11, 2006
A. The League of Women Voters of Ohio v. Blackwell suit attacks fundamentally the
constitutionality of Ohio’s election process.
The League of Women Voters of Ohio (the League) begins by quoting Reynolds v. Sims
and Bush v. Gore as the basis for its equal protection and due process claims.2 The preliminary
statement of the complaint includes allegations that the system deprives individuals of the right
to vote. This failure is claimed to be the result of a lack of statewide standards and improper
administration by the executive particularly the secretary of state and the governor. The suit also
claims that these flaws have been known and ignored for decades and will continue without
judicial relief.3 In addition to the institutional plaintiffs there are twelve individual plaintiffs that
really provide the substance of the claims. Each individual found it difficult or impossible to
vote allegedly as a result of incorrect action by election officials, a faulty system, or both.4
Secretary of State Kenneth Blackwell and Governor Bob Taft are listed as defendants with a
detailed listing of their respective duties in order to explain why they are proper parties.5 It is
important to note that neither the legislature nor the state of Ohio as an entity are listed as
defendants. This will require that any injunctive relief must be limited to the executive branch
including rule making authority of the secretary of state.
“The right to vote freely for the candidate of one’s choice is of the essence of a democratic
society, and any restrictions on that right strike at the very heart of representative government.”
Reynolds v. Sims, 377 U.S. 533, 556 (1964). “The right to vote is protected in more than the
initial allocation of the franchise. Equal protection applies as well to the manner of its exercise.
Having once granted the right to vote on equal terms, the State may not, by later arbitrary and
disparate treatment, value one person’s vote over that of another.” Bush v. Gore 531 U.S. 98,
104 (2000).
3
See Amended Complaint for Declaratory and Injunctive Relief Nov. 30, 2005 pg. 2-4.
4
See id, 6-17.
5
See id, 17-19.
2
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May 11, 2006
After building a factual record that will be discussed in greater detail below the League
requests declaratory and injunctive relief.6 The suit begs a declaration that Ohio’s system
violates the equal protection of the fourteenth amendment, substantive and procedural due
process rights under the fourteenth amendment, and that administration of the system violates the
Help America Vote Act (HAVA).7 The complaint then lists twelve requests for equitable relief,
ten of which are applicable to this analysis, asking that defendants be enjoined to adopt rules and
uniform standards to:

Properly process voter registration and absentee ballot requests,

Ensure uniform standards for distribution and supply of adequate voting materials
including working machines,

Allow voting without unreasonable hardship or delay,

Require that each county timely recruit and train poll workers to ensure proper staffing,

Ensure each polling place properly accommodates disabled voters including training of
poll workers on this issue,

Require multiple-precinct polling places be sufficient to accommodate the number of
voters assigned,

Require each county has adequate resources to support election officials and poll workers
on election day,

Maintain a process of audit and review of each county board of election and,
6
See id, 57-60.
See id, 57-58. The request for relief for violation of HAVA was dismissed for failure to state a
claim upon which relief could be granted. This was based on the idea that when the suit was
filed Ohio was not yet required to follow HAVA’s statewide registration database requirements.
See Order Granting Count motion to dismiss regarding Count Four and denying on other counts
and change of venue. Dec. 2, 2005.
7
3

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May 11, 2006
Provide proper remedy and process for Ohioans who are deprived the right to vote with
respect to registration, eligibility, and casting of regular and provisional ballots.8
The areas of election law impacted by these requests will be addressed in detail and
compared to HB3 below.
It is important to note that the progress of the law suit is being delayed pending
defendants’ appeal of the denial of the motion to dismiss which was permitted by Judge Carr in a
February thirteenth order. In the interim the parties are engaged in discovery, but the process is
being disputed. In reports filed on April 3, 2006 by plaintiffs, defendants, and intervenorplaintiff White each party claims obstruction on the part of the others.9 These accusations range
from failure to answer interrogatories to claiming a privilege not recognized in Ohio or Federal
law. The defendants cite the May 2, 2006 primary election as reason they could not devote the
amount of time to discovery demanded by the plaintiffs. The plaintiffs also filed a discovery
report on April 28, 2006 which provides details of the variety of ways they believe defendants
have systematically avoided discovery.10 All parties are requesting large amounts of documents
and the plaintiffs at least have proposed an ambitious deposition schedule which would begin
May 8, 2006 and proceed through mid-June.11 It appears at this point that both sides are
hindering the process of the case. In light of this it is unlikely that the suit will be resolved
8
See Amended Complaint, pg. 58-60. The last two areas requested for injunctive relief regard
HAVA and a broad request for free and fair elections in each county which will be covered
through examination of the more specific requests. See id.
9
See Plaintiffs’ Status Report on Discovery April 3, 2006. Defendants’ Status Report on
Discovery April 3, 2006. and Intervenor-Plaintiff White’s Status Report on Discovery Issues
April 3, 2006.
10
See Status Report April 28, 2006. The report indicates three problematic areas in failure to
provide the availability of individuals as requested, adopting a policy of purging e-mails older
than thirty days, and only selectively following the April 12, 2006 discovery order.
11
Discovery Report April 28, 2006.
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Bethany Sanders
May 11, 2006
before the November 2006 election allowing time for all of HB3 to take effect before the case is
decided.
B. House Bill 3 makes significant changes to many facets of election law, including many of
the areas addressed in LWVO v. Blackwell.
While the identification requirement provision has garnered the most publicity many
aspects of HB3 will directly impact voters.12 The changes will be implemented in stages with
the bulk of the law taking effect on May 2, 2006 and the remaining provisions including the id
requirement on June 1, 2006. The first impacts of the act will likely be felt in the area of
registration with the greatest burden falling on individuals and groups conducting registration
drives. These effects will go hand in hand with the changes in absentee ballot requirements.
While Ohio has gone to no-excuse absentee voting, the application of the identification
requirement to absentee voters will represent a change for many traditional users of absentee
ballots.13 Provisional balloting standards also undergo revision which results in fourteen
categories for their use. Some changes are made regarding disabled voters mainly relating to
who can be an “attorney in fact” for signature purposes. Significantly, the process of machine
allocation is made public and certain requirements of new machines, including voter verified
paper trail, are codified. It is also important to note that no change to poll worker recruitment or
training is made in HB3. More of the details of the act will be discussed in conjunction with
analysis of the claims in the law suit. It is important to note that significant rule making
authority is still granted to the Secretary of State. Also while interesting in their own right,
changes to campaign finance laws, requirements on petitions for referendums, and a prohibition
See e.g., “Coming this fall: Voters must show ID at polls.” Jim Siegal. The Columbus
Dispatch. Feb. 1, 2006. and “Full ballot, I.D. rule planned for fall.” Reginald Fields. The Plain
Dealer. Jan. 27, 2006.
13
See “Election With ID, anyone can vote absentee” New Briefs. The Cincinnati Enquirer
March 28, 2006.
12
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May 11, 2006
on federal election challenges in state courts are beyond the scope of the law suit and thus this
work as well.
C. The Mootness Doctrine of the 6th Cir. does not bar the suit in light of HB 3.
It is also important to recognize that the mootness doctrine does not bar the law suit as a
result of HB3. In the Sixth Circuit a “case becomes moot only when subsequent events make it
absolutely clear that the allegedly wrongful behavior cannot reasonably be expected to recur and
‘interim relief or events have completely and irrevocably eradicated the effects of the alleged
violation.’” 14 The doctrine asks if the relief sought would make a legal difference to the
parties. Because HB3 still calls for significant rulemaking and some claims raise in the suit are
not addressed at all relief could still lead to significant changes to the election system..
II. Registration and Absentee Ballots are at the center of the coming changes.
The registration process and the use of absentee ballots are important aspects of the law
suit and HB3. In both the suit and the act there is recognition of flaws in the status quo, but each
takes a different approach towards solving those problems. The law suit presents the claims of
individuals who had problems with the registration or absentee process as indicative of broader
defects. The bill places greater restrictions and requirements on groups and individuals being
paid to register voters, establishes a strict timeline for processing registrations, creates guidelines
for purging the voter rolls, and applies new ID and other requirements on absentee ballots.
These new provisions would guide how any injunctive relief would be structured.
14
Cleveland Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 531 (6th Cir. 2001).
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Bethany Sanders
May 11, 2006
A. Allegations regarding registration and absentee ballots are at the core of the law suit.
Of the twelve individual plaintiffs, five claim problems or disenfranchisement based on
an improper purge or failure to be correctly registered as a voter.15 Ms. Stenson who had been
voting in the same polling place for years was told she was not on the rolls. After problems with
poll workers she ended up voting by provisional ballot which was not counted.16 Ms. Barberio’s
name appeared on the rolls in August of 2004. For the November 2004 election after her
husband received a voter card and she did not she contacted the board of elections to inquire if
there was a problem. Although she was told there was no problem, at the polls she was not on
the list and forced to vote by provisional ballot. Her provisional ballot was not counted because
the board said she was not registered.17 These specific claims support the overall statement that
the Secretary has through action and inaction created “non-uniform and wholly inadequate
standards and processes among counties with respect to, inter alia, voter registration, [and]
absentee voting.”18 The complaint further alleges that many individuals who registered in a
timely way are not listed on the voter rolls and others were improperly purged to “inactive” lists.
Additionally, the compliant cites last minute changes to the process or registration by Directive
of the Secretary of State as compounding the problem.19
In addition to the flaws in registration, absentee ballot processes are heavily criticized in
the complaint. Four types of problems with absentee ballots are cited: “(1) despite timely . . .
requests, no absentee ballot was received, (2) despite timely requests, the absentee ballot was
15
See Amended Complaint pg. 6-17.
Id, at 6-7. At this time there is no information beyond that in the claim available as to why the
individual plaintiffs’ provisional ballots were not counted. Hopefully, that information will
become part of the discovery process.
17
Id. at 11.
18
Id. at 20-21.
19
Id, at 22, 25.
16
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May 11, 2006
received on or so near election day that is was impossible to timely return the ballot to the board
of elections; (3) voters who never received an absentee ballot were listed as having requested
such a ballot and precluded from voting on election day be regular or provisional ballot; and (4)
voters who never requested an absentee ballot were erroneously listed as having requested such a
ballot and precluded from voting on election day by regular or provisional ballot.”20 It is alleged
that part of the problems were the result of a flood of absentee ballot requests which could have
resulted in improper rejection of ballot requests.21 Additionally, while the complaint claims that
federal law requires those marked as having voted absentee be given a provisional ballot, a
directive of the Secretary barred that practice until overruled by court order midway through
election day.22
B. Significant changes made to registration and absent voter provisions are made in
HB3.
The first major change to voter registration accomplished by HB3 deals with individuals
who are compensated to register others. Anyone who receives compensation for registering a
voter is required to annually complete an Internet-based training program, register in advance
with the Secretary of State, and return the application to any board of elections or the Secretary
of State’s office.23 The act specifies a timeline for returning the registration forms such that they
can be processed in a timely way. This section makes a violation of this provision a fifth degree
felony, or if some conditions are met a first degree misdemeanor.24
20
Id, at 25.
Id, at 26.
22
Id, at 27.
23
O.R.C. § 3503.14(A) and O.R.C. § 3503.29. Unless otherwise noted all the Ohio Revised
Code provisions cited are part of HB3.
24
O.R.C. § 3599.11.
21
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May 11, 2006
If the Secretary of State’s office or a county board receives registration applications for
another county board they must forward them on within ten days unless thirty days or less
remain before the next election.25
Boards must register any valid applicant within twenty
business days unless fewer than thirty days precede an election.26 However, if a registration card
that had been mailed is returned as undeliverable and the address cannot be verified, that
individual shall be marked in the poll book and required to vote by provisional ballot in the first
election at which the voter appears. Voters in this situation could be required to provide
additional information within ten days of the election to have their vote counted.27
The act also requires the Secretary of State to establish a statewide voter registration
database that will serve as the official registered voter list from which each county and precinct
list is to be created.28 The database must create an integrated network between the Secretary of
State’s office and all of the county boards of election with a method in the software to harmonize
the county lists provided.29 The process for creating this list, including how to transfer
information from the current system, providing a uniform system, and allowing for the proper
way to purge voters (as discussed below) are left entirely to rule making authority of the
secretary of state.30 These rules would be promulgated under a procedure that requires public
hearings on the rules and subjects them to legislative review.31 As of yet this database does not
exist, but the form it takes over the coming months will be incredibly important to the success or
failure of the new registration regime.
25
O.R.C. § 3503.19(B)(2)(d).
O.R.C. § 3503.19(C)(1).
27
O.R.C. § 3503.19(C)(2).
28
O.R.C. § 3503.15 and O.R.C. § 3503.23(A).
29
O.R.C. § 3503.15(C)(1)(2).
30
O.R.C. § 3503.15(D).
31
O.R.C. § 119.
26
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May 11, 2006
In several locations the bill provides guidelines for canceling registrations and purging
the voter rolls. These guidelines are often vague. Under O.R.C. § 3501.05(Q), the Secretary can
“Adopt rules . . . to require each board of elections to remove ineligible voters from the statewide
voter registration database and, if already prepared for a particular election, from the poll list or
signature poll book used in each precinct.” Further guidelines under this section indicate these
rules deal with voters who have moved, thus affected by O.R.C. § 3503.21 and creation of a
uniform statewide system.32 The general reasons for canceling a registration, such as death,
moving out of the registration area, etc. remain largely unchanged by HB3, but are now subject
to greater rulemaking by the Secretary of State.33
Changes are made to absent voter requirements to bring this type of voting in line with
the general provisions of the bill such as the identification requirement. Individuals requesting
and voting absentee ballot are required to provide an alternative form of identification. When
requesting an absentee ballot additional identification is required,34 but when returning the ballot
a driver’s license number or the last for digits of a social security number is sufficient.35 This
32
O.R.C. § 3501.05(Q)(1-3).
O.R.C. § 3503.21.
34
“A copy of the elector's current and valid photo identification, a copy of a military
identification that shows the elector's name and current address, or a copy of a current utility bill,
bank statement, government check, paycheck, or other government document, other than a notice
of an election mailed by a board of elections under section 3501.19 of the Revised Code or a
notice of voter registration mailed by a board of elections under section 3503.19 of the Revised
Code, that shows the name and address of the elector.” O.R.C. § 3509.03(E)(3). Similar
language appears in O.R.C. §§ 3509.031(A)(5)(c) and (B)(5)(c) and §§ 3511.02(A)(5)(c) and
(C)(6)(c).
35
“If the elector does not provide the elector's driver's license number or the last four digits of
the elector's social security number on the statement of voter on the identification envelope, the
elector also shall include in the return envelope with the identification envelope a copy of the
elector's current valid photo identification, a copy of a military identification that shows the
elector's name and current address, or a copy of a current utility bill, bank statement, government
check, paycheck, or other government document, other than a notice of an election mailed by a
board of elections under section 3501.19 of the Revised Code or a notice of voter registration
33
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May 11, 2006
codifies the federal standard that someone marked as requesting an absentee ballot can vote
provisionally and if the absentee ballot is received in time it shall be counted over the provisional
ballot.36
C. HB 3 adds burdens on voters and others involved in the process while leaving
room for injunctive relief.
The law suits claims regarding registration and absentee voting policies is that the system
is flawed and not equally administered across the state. Some of the provisions, like establishing
a timeline for transmittal of voter applications received, and potentially even the registration
requirement for those paid to register voters should alleviate some of these concerns. However,
in the area of canceling registrations and purging voter laws the bill provides almost no concrete
guidelines. Because of the emphasis on rulemaking this entire area is left at the discretion of the
Secretary of State and therefore under the purview of the law suit. A court could enjoin the
Secretary to promulgate very specific guidelines without violating or stepping over the
provisions of HB3.
The law suit does not specifically cover the statewide registration database as that prong
of the claim was dismissed. However, the significant rule making authority granted to the
Secretary in this area could be used as a judicial hook. A statewide database that does not
address the registration related concerns in the suit could be included in an injunction even
without a specific finding of a problem.
The provision requiring those whose mailed registration notices are returned to the Board
as undeliverable to vote by provisional ballot seems contrary to the goals of the suit, but it is
mailed by a board of elections under section 3503.19 of the Revised Code, that shows the name
and address of the elector.” O.R.C. 3509.05(A). Similar language appears in O.R.C. 3509.04(B),
and 3511.09.
36
O.R.C. § 3509.09 and § 3511.13.
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May 11, 2006
unlikely anything specific will come from that conflict. The legislature is not a defendant and
that provision is clear regarding the need for a provisional ballot. It therefore falls outside the
scope of this law suit.
Nothing in HB3 regarding registration or absentee ballots will bar or even significantly
undermine the claims by the League of Women Voters. The increased rule making language
could allow the court to fashion a detailed equitable plan without interfering directly with
legislative intent.
III. Provisional Ballots are likely to become increasingly important and therefore
increasingly controversial.
As will be discussed below, the number of provisional ballots used under HB3 is almost
certainly going to increase. It is therefore necessary to determine appropriate standards for when
to issue a provisional ballot and how it should be determined whether or not that ballot should be
counted.
A. LWVO alleges equal protection and due process violations in how provisional ballots
are used handled and count.
The league’s complaints regarding provisional ballots are two fold: first, the ballots are
not being issued in an appropriate or uniform way and second, there is a lack of uniformity in
how they are being counted. This issue affected six of the twelve individual plaintiffs. Mr.
Anthony White went to his usual polling place in November of 2004 and was told that he did not
appear on the voting lists of any of the three precincts at that location. Mr. White was given and
voted a provisional ballot without being notified that it might not count. The county board of
elections did not count Mr. White’s ballot and has no record of his efforts to vote.37
37
Amended Complaint, at 9.
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General confusion regarding provisional ballots across the state is alleged with some poll
workers refusing or failing to provide them when appropriate.38 There were further problems at
polling places with more than one precinct because voters were not given sufficient guidance to
turn their provisional ballots in at the correct table.39 The suit alleges that these problems were a
direct result of poor management by Secretary Blackwell in failing to issue appropriate
guidelines.40 Finally, the suit references a substantial swing in the percentage of provisional
ballots eventually counted per county as evidence of disparate process for evaluating the
ballots.41
B. HB3 is likely to increase the number of provisional ballots as it increases the reasons for
which they are used.
Reasons for Provisional Ballots For each requirement regarding registration,
identification, and mailing of the voter registration card there is a corresponding provisional
ballot system which comes into full effect on June 1, 2006. Fourteen categories are
contemplated under the act.
The first reflects the use of provisional ballots under HAVA, where a person claims to be
registered and does not appear on the list of eligible voters.42 Second, individuals unable to
provide required identification, but willing and able to provide the last four digits of her social
security number (SSN).43 Third, an individual unable to provide id or SSN, but has both, just not
38
Id, at 39-40.
Id, 40.
40
Id, 41.
41
“Statewide, approximately 78% of provisional ballots were determined to be valid and were
counted. However, the percentage of provisional ballots counted varied widely from county to
county, from a low of 60.5% to a high of 98.5%.” Id, at 42.
42
O.R.C. § 3505.181(A)(1).
43
O.R.C. § 3505.18(A)(2) and § 3505.181(A)(2).
39
13
with her.44
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May 11, 2006
Fourth, an individual who does not have any id and who cannot provide the last four
digits of her SSN because she does not have one and executes an affirmation indicating that.45
Fifth, individual who does not have id and who cannot provide last four digits of an SSN because
she does not have one and declines to execute an affirmation that so indicates.46 Sixth, someone
who appears and who has but declines to provide id or who has an SSN but declines to provide
the last four digits.47 Seventh, an individual who’s entry in the poll book has been marked as
requesting an absentee ballot.48 Eighth, an individual whose notification of registration has been
returned undeliverable and whose name is marked as a result.49 Ninth, an individual who is
challenged by election officials and is ineligible to vote or whose eligibility cannot be
determined.50 Tenth, an individual whose application or challenge hearing has been postponed
until after the election.51 Eleventh, an individual whose notice of an election was returned
undelivered and who provides id without address, provides the last four digits of the SSN, unable
to provide any forms, refuses to provide any forms, or executes affirmation indicating she
doesn’t have any of the forms and cannot give SSN.52 Twelfth, someone with a name change in
the precinct, moving from precinct to precinct within the county, moves within the county and
changes name, or moves from one county to another within Ohio and signs the requisite forms.53
Thirteenth, an individual who signs in to vote and whose signature is questioned and examined
44
O.R.C. § 3505.18(A)(3) and § 3505.181(A)(3).
O.R.C. § 3505.18(A)(4) and § 3505.181(A)(4).
46
O.R.C. § 3505.18(A)(5) and § 3505.181(A)(12).
47
O.R.C. § 3505.18(A)(6) and § 3505.181(A)(13).
48
O.R.C. § 3505.181(A)(5), § 3509.09(B) and § 3511.13(B).
49
O.R.C. § 3503.19(C)(2) and § 3505.181(A)(6).
50
O.R.C. § 3505.181(A)(7) and § 3505.20.
51
O.R.C. § 3503.24(D)(1) and § 3505.181(A)(8).
52
O.R.C. § 3501.19(C).
53
O.R.C. § 3503.16(B)(1)(b), (2), (C) and § 3505.181(A)(9).
45
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54
and determined by a majority of precinct officials to be an impersonation. Fourteenth, A
challenged individual who refuses to make the required statement who a majority of precinct
officials find lack qualifications to be an elector or party member in a primary.55
The sheer number of categories and subcategories will require increased training of poll
workers in the upcoming election. The complicated set up will be difficult for voters to
understand precisely when they are eligible for a provisional ballot.
Casting of Provisional Ballots There is a basic process for how provisional ballots
should be cast, O.R.C. 3505.181(B)(1-3). First the voter should be notified that he can cast a
provisional ballot. Then he shall be able to cast the ballot upon a written affirmation that the
person is registered and eligible to vote. The poll worker shall then transfer the ballot to the
proper official.56 It is unclear to what extent the poll worker will be required to indicate which of
the fourteen categories the provisional ballot was cast under.
Counting of Provisional Ballots The act requires that provisional ballots be evaluated
strictly at the county level and is governed by two subsections of O.R.C. § 3505.183. The first
provides a list of requirements all of which must be followed if the ballot is to be counted.57 The
second, a corresponding list of factors if any one of which is met the ballot will not be counted.58
For a ballot to be counted the individual must be properly registered, eligible for the precinct and
election in question, fulfill the requirements of the affirmation, if applicable provide the
additional information required by O.R.C. § 3505.181(B)(8), and if applicable be included as a
54
O.R.C. § 3505.181(A)(10) and § 3505.22.
O.R.C. § 3505.181(A)(11) and § 3513.20.
56
O.R.C. § 3505.181(B)(1-4).
57
O.R.C. § 3505.183(B)(3).
58
O.R.C. § 3505.183(B)(4).
55
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registered voter after a post-election hearing. The process of evaluating and counting the
provisional ballots is to be completed within ten days after the election.
The provisions in O.R.C. § 3505.181(B) will be incredibly important in whether or not a
ballot is counted. First, an appropriate election official determines eligibility of the vote. The
voter should be given access to a system to determine if his vote had be counted and if not why
not. The election official is to indicate if identification and an affirmation were given at the
polls.59 If a ballot is cast under certain provisions of O.R.C. § 3505.181(A) then the election
official is to indicate that further information is required before the ballot can be counted and an
individual has 10 days to provide that additional information.60 While the statute is very clear on
what must be reported to the board of elections, it is less specific on what information must be
given to the voter. It is unclear how voters who need to provide additional information to the
board of elections will be informed of that requirement.
C. Changes made through HB3 move provisional balloting largely beyond the scope of the
law suit.
The legislature chose to go into great detail when prescribing the process by which
provisional ballots will be issued, completed, and counted. There is no section regarding these
ballots that grants the Secretary of State rule making authority. Some descriptive and
explanatory directives could be issued, but it is unlikely they will be included in any trial.
The League should not consider it a total loss that HB3 covers provisional ballots so
thoroughly. The important issues in the case was that uniform standards be applied statewide.
Now, it is perfectly clear that the letter of the law is identical and uniform. For that it can claim
59
O.R.C. § 3505.181(B)(6).
This provision applies to O.R.C. § 3505.181(A)(3), (7), (8), (12) and (13). These sections
cover situations where an individual does not provide identification or social security number or
has been challenged and cannot be verified.
60
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some victory. Once the provisions of HB3 come into effect any remaining problems with how
ballots are evaluated and counted could be the subject of future statutes or if necessary separate
litigation.
To the extent that the League is not satisfied with how the provisional balloting
provisions are applied can be linked to the supervision and poll worker training provisions where
there is more leeway. Training and uniform interpretation will be essential to allowing county
boards and individual precincts properly utilize the change in law.
IV. Poll Worker recruitment and training is of central importance to the law suit and
noticeably absent of HB3.
Poll worker staffing and training is absolutely essential to the success of any election.
The best written election code in the world cannot function if the workers do not know what to
do. Conditions of incompetence and confusion alleged by the suit go unanswered in HB3.
A. Lack of trained poll workers exacerbated every problem already present on election
day.
In addition to the individual plaintiffs problems with poll worker malfeasance (affecting
nine of twelve individual plaintiffs), the overall lack of familiarity with some basics of elections
lead to inequalities in treatment across the state. An essential component of the claim is that
defendants knew or should have known of poll worker problems.61 The allegations in this
section list improper actions by poll workers in “some precincts” which disenfranchised or
unfairly burdened voters. These allegations include: requiring identification, telling voters how
to cast their ballot, failure to correctly read poll books, directing voters to wrong precinct,
limiting voter time to as little as three minutes, refused or were unable to assist voters with
61
Amended Complaint, at 37.
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62
machines, and failed to accommodate disabled voters as required by law. It is alleged that
some of these problems are due to poor training and some due to shortages that required last
minute hiring, but this problem has persisted and should have been known to defendants.63
B. No specific guidance found in HB3 leave this area open to judicial intervention.
Although never specifically mentioned HB3 increases the overall procedure required at
the polls by, for example, requiring identification of voters and
increasing categories of
provisional ballots. This increased burden comes with no guarantee of increased support or state
wide coordination. The full responsibility for recruiting and training poll workers will continue
to rest with county boards of election. Local control over such a pivotal area within the election
fuels the League’s concerns over uniformity. There is however some statutory control with a
judicial hook. The current provision governing poll workers, while not even mentioned in HB3
gives the Secretary of State the ability to prescribe the standards of training and materials that the
poll workers are to receive.64 Under the auspices of the law suit a judge could require a uniform
and comprehensive system of training that could, in the eyes of the League alleviate many of the
problems with our current system. Without statewide recruitment or training standards it is
unlikely there will be equality of treatment across each county.
V. Disabled Voters are granted additional options, but problems could persist.
Concerns of polling place access for disabled voters is an important part of the law suit.
The act addresses one facet of this concern in giving disabled voters more options in terms of
choosing a representative, but leave other facets unaddressed.
62
Amended Complaint, at 38.
Id, at 39.
64
“(B) Each board shall establish a program as prescribed by the secretary of state for the
instruction of election officers in the rules, procedures, and law relating to elections.” O.R.C.
§ 3501.27.
63
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A. Lack of uniformity and basic disenfranchisement cited as broad problem with specific
examples in LWVO suit.
Failure to accommodate disabled voters is contrary to Ohio law in place since at least
1982.65 Despite this requirement reports from Nov. 2004 indicate that disabled voters were
severely burdened. Ms. Charlene Dyson suffers from debilitating arthritis in both legs and uses
an electric wheelchair “much of the time.”66 After calling her county board of elections and
being assured a ballot could be brought to her car so she could cast her vote, election officials
repeatedly refused her sister’s request to accommodate Ms. Dyson. 67 As a result she was
disenfranchised. In general, required curbside voting was refused, disabled voters could not be
assisted by an individual of their choice, long lines with no seating were a greater hardship on the
disabled and elderly than others, and some polling places were just inaccessible.68 While a
minority of voters, the disabled have been granted special protection under Ohio law that
according to the complaint is being ignored.
B. Disabled Voter provision is limited to legislation relating to “attorney in fact.”
An entirely new section of the code is added to cover the role and requirements of an
“attorney in fact” for disabled voters.69 An disabled voter who cannot sign as a result of
disability can appoint any 18 yrs. or older resident of Ohio as his attorney in fact if identification
and other relevant information is provided on a notarized form with attached photocopy of the
attorney in fact’s photo id.70 If the form is filled out in the presence of an election official it
65
Amended Complaint, at 42.
Amended Complaint, at 8.
67
Id, at 8.
68
Id, at 42-43.
69
O.R.C. § 3501.382.
70
Id, at (A)(1)(a).
66
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requires much of the same information but does not have to notarized.71
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Later sections then
provide detail on how the signature should be recorded in poll books and that it can be used as if
it were the signature of the voter on petitions and the like in the presence of the voter.72 The
forms used in the process under (A)(1) both to grant and to revoke this power of attorney shall be
proscribed by the secretary of state.73
C. The detail of the process provided works, but is incomplete in protecting rights of
disabled alleged in suit.
The League would approve of the provisions allowing a disabled person to appoint
whomever she chooses as her attorney in fact. However, the incredible detail in the provision
contrasted with the incomplete nature of this effort leaves room for equitable relief. There is no
information in the bill itself as to what would happen if a technicality of the form is found out to
be incorrect or incomplete shortly before or on election day. It would be unfortunate to
disenfranchise someone because he innocently left off some detail about his chosen attorney in
fact.
The attorney in fact provision is all that this bill addresses in terms of the disabled. This
does not alleviate any of the polling place access, or assistance in the voting booth concerns.
Requiring via court order a firm rule on curbside assistance and voter training regarding the
disabled could go a long way to decrease risk of disenfranchisement.
VI. The process of allocating and selecting voting machines and facilities is given needed
transparency which should alleviate some concerns.
Having a sufficient number of voting machines for each precinct and a suitable space to
conduct the voting is essential to the success of an election. The transparency and mathematical
requirements should correct many of the past wrongs in this area.
71
Id, at (A)(1)(b).
Id, at (B)-(D).
73
Id, at (E).
72
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A. LWVO v. Blackwell alleges improper distribution of resources and confusion at
locations with multiple precincts.
Machine Allocation. By citing the predicted high rate of voter turnout which matched the
actual turnout, the plaintiffs indicate that the burden on voters and long lines is the result of
improper planning that amounts to a fundamental failure in election administration.74 The
machine allocation is particularly problematic given that it was not a general shortage, but
occurred in random counties or precincts across the state. In Franklin County, hundreds fewer
machines were provided than the county’s own analysis indicated were required.75 Witnesses
report, ratios of voters per machine reached as high as 200 to 500 voters per machine.76
Proper Ratio Per Machine The complaint asserts that a proper ratio is near 100 voters
per machine, which used to be the standard in Ohio. This is fewer voters per machine than many
precincts experienced and is also under the 156 voter maximum set by Ohio’s five minutes to
vote rule.77 The ratio also varied greatly county to county from approximately 70 voters per
machine to more than twice that amount.78 Without more preemptive action in determining the
proper number of machines per county and per precinct equality as envisioned in the complaint
cannot be reached.
Burden on the Voter The problems in equipment at the polling place is reflected as a
burden on the voter through an increased wait, or in some cases inability to vote at all. In some
cases mentioned in the complaint, voters waited up to ten to twelve hours to vote.79 It is asserted
that longer lines increase the likelihood of disenfranchisement and so is particularly offensive
74
Amended Complaint, at 29.
Amended Complaint at 30.
76
Id.
77
Id, at 31.
78
Id, at 32.
79
Id, at 32.
75
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when the burden differs drastically within the state.80
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May 11, 2006
The complaint contains many individual
accounts including an allegation that one voter’s husband died at home alone while she waited
for four hours to vote.81 The stories strongly illustrate the burden long lines place on voters
highlighting the need to minimize waits or at least have equality in wait in different parts of the
state.
B. HB3 addresses machine allocation in conjunction with use of new type of machines.
The change in Ohio law follows the trend started with HAVA to require direct recording
electronic (DRE) voting machines with a voter verified paper audit trail (VVPAT). The
Secretary shall establish by rule the process for certification of this type of machine.
Additionally, the content of the VVPAT shall be set by rule.82 VVPAT must be treated as ballots
under public records law.83
More significant changes are made in the process by which machines are allocated. First,
a full vote of the county board on the allocation and distribution of voting machines and related
equipment for each precinct must be conducted at a public meeting.84 Second, starting in 2013
and every eight years after that, the Secretary of State must establish a minimum number of DRE
machines a county must have. The formula is the total number of registered voters at the time of
the last presidential election or average of the last two, whichever is greater, divided by 175 and
rounded up to the next whole number.85
80
Id, at 33.
Id, at 34.
82
O.R.C. § 3506.05(H)(3)(a)(vi) and (vii).
83
O.R.C. § 3506.18(C).
84
O.R.C. § 3501.11(I).
85
O.R.C. § 3506.22(B). So if a county had 150,000 registered voters at the October deadline
before the 2000 presidential election and 200,000 registered voters at the same for the 2004
election the formula would be: 200,000 divided by 175=1,143 machines. But if the registration
81
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C. The changes to machine allocation and approval procedures are a step in the right
direction with little room for judicial intervention.
The only area regarding machines that has any remaining rule making authority is in the
process for approving DRE machines. As long as a sufficient number of machines are approved
to meet the needs of the state this issue is only tangentially related to the substance of the
complaint.
The lack of recourse does not mean the plaintiffs will be satisfied with the allocation
provisions. It is a good step that the county boards have to vote in the open. However, there is
no requirement of public recommendation or comment. There is no requirement to equalize the
number of people per machine at each precinct within the county. Hopefully the bi-partisan
nature of county election boards and the attention that the allocation process will get by
interested parties will be sufficient to prevent any extreme disparities in voter to machine ratios.
The minimum machine requirements determined by the Secretary of State will also help
to preserve equality throughout the state. However, this provision does not take affect until 2013
allowing the two presidential cycles strictly required by the formula to pass. Additionally, the
equation will result in dated machine allocation which can not guarantee the end of long lines.
The population of an area could skyrocket over four years resulting in a significant increase in
the voter per machine ratio that the county would not be required to change until after the next
presidential election.86 Perhaps the equation will be enough. It should be given time to work
numbers were reversed (200,000 in 2000 and 150,000 in 2004) then the formula would be:
((200,000 + 150,000)/2)/175=1,000 machines.
86
For example: Between 2000 and 2003 Delaware County grew from 109,989 people to
132,797 people (in raw people not registered voters), and increase of 20.7%. See,
http://www.epodunk.com/top10/countyPop/coPop36.html. Assume for sake of argument that the
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because it is a purely statutory enactment that is not interpreted but just acted upon by the
Secretary of State.
VII. Issues raised by the law suit and HB3 can be used to predict the near future of Ohio
Election Law.
In order to illustrate the ways the act and the law suit could impact the near future two
areas should be examined. First, the interaction of poll workers with the new system of
provisional balloting will be incredibly important in the November election. Second, the election
of a new secretary of state could significantly change the path of the suit.
A. Provisional ballots and whether or not they are used appropriately will be the most
important legal issue in Ohio in November 2006.
The detail in the provisional balloting sections of HB3 will be put to the test when
applied this fall by poll workers who are left out of HB3 entirely. The primary election held on
May 2, 2006 should serve as forewarning that poll worker training on new machines and with
new requirements may be entirely inadequate.87 It is essential that by this November the polls
are adequately staffed with fully trained workers and that a back up system is in place so workers
can reach superiors for complicated issues. If the current lack of proper training continues the
problems in November will be two fold. First, extreme confusion will surround the use and
counting of provisional ballots. Second, this will result in delays at the polls increasing the
burden on every voter.
percentage of the population registered to vote holds steady at 75%. In 2000 there would be
about 82,500 and 472 machines. In 2003 there should be 99,600 voters and 570 machines but
the required number of machines would not increase until after the presidential election. So
instead of being close to 175 registered voters per machine you would actually have at least 211
registered voters per machine by the next presidential election.
87
See “A Sampling of Voting Problems Reported Across Ohio.” Akron Beacon Journal May 3,
2006. See, “Elections board opens prove into voting fiasco.” Joan Mazzollni. The Plain Dealer.
May 9, 2006. While this article focuses on Cuyahoga county the problems experienced could
easily occur throughout the state.
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The best way to guide poll workers regarding how to use provisional ballots would be to
increase training and provide more reference materials for use at the polls. The additional
training could be accommodated through means other than large workshops. Interactive
computer based training, instructional videos, and conference calls should be used by election
officials in order to expand access to information. Detailed checklists and charts of the different
provisional ballot categories should be provided to all precincts for use on election day. An
uncertain poll worker will probably be able to follow step by step instructions even if it would
increase the amount of time required to process a provisional voter. While the idea of internet
access at each precinct or electronic access to additional training information is a good long term
goal, for this November non-technological and easier understood methods of disseminating
information must be the standard.
If proper preparations are taken, the burden on other voters can be minimized. The
number of poll workers must be adjusted to allow for a separate processing of provisional voters.
County Boards of election should strive for an absolute minimum of five officials per precinct at
all times, so in reality six or seven in order to accommodate lunch breaks. This would allow two
workers to process regular voters, two workers to interact with the voting machines and one or
more workers to deal with provisional voters or other issues that require special attention. This
would not necessarily eliminate wait time and unforeseen delays but it could serve to minimize
them.
B. A new Secretary of State could significantly change the course of the law suit.
This November, Ohio will select a new Secretary of State. Given the recent emphasis on
Ohio elections both Jennifer Brunner, the Democratic nominee, and Greg Hartmann, the
Republican nominee, emphasize election reform and administration in their campaign
25
platforms.88
Bethany Sanders
May 11, 2006
However, they each envision that this reform would move in a distinctly different
directions.
The Brunner plan emphasizes goals of fairness and equality in the election process. She
plans to “administer all elections in a fair, open and honest manner with a process that can be
audited and verified.”89 More specifically she references equal distribution of voting machines
and enforcing laws against voter intimidation and using voter education as a means of improving
the electoral process.90 Additionally in an open letter to Gov. Taft, Brunner urged him to veto
HB3 because of the voter identification requirements.91
In contrast the Hartmann approach focuses on protecting elections against fraud and
improper influence from outside of Ohio. This includes limiting petition and voter registration
drives to Ohio residents who are not convicted felons and creating a voter registration fraud
investigation unit to refer cases to the Ohio Election Commission or the County Prosecutor.92 He
also proposes to establish procedure to complete audits and investigations in a timely manner to
protect the time sensitive nature of the electoral process.93 He specifically endorses
identification requirements and the use of provisional ballots, but makes no reference to HB3
specifically.94
While both candidates would likely welcome an opportunity to settle the law suit and
avoid time consuming litigation, Brunner would be much more likely to succeed based on her
88
See My Plan. Jennifer Brunner for Ohio Secretary of State.
http://www.jenniferbrunner.com/platform.asp. and My Plan. Greg Hartmann for Ohio Secretary
of State. http://www.greghartmann.com/plan.cfm.
89
My Plan. Jennifer Brunner for Ohio Secretary of State.
http://www.jenniferbrunner.com/platform.asp.
90
Id.
91
The letter is available at: http://www.jenniferbrunner.com/Letter_to_Gov_Taft_013106.pdf
92
My Plan. Greg Hartmann for Ohio Secretary of State. http://www.greghartmann.com/plan.cfm.
93
Id.
94
Id.
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May 11, 2006
platform. It is unlikely that the League would accept anything short of comprehensive reform as
a settlement. Hartmann, based on his platform and his party affiliation with Blackwell and Taft
would be less willing to provide the type or changes sought. This is not to say that Brunner
would succeed. Part of the goal for the League is to get a declaratory judgment on the
constitutional issues raised in the claim. It is unclear if any action by a new Secretary of State
could take action sufficient to satisfy the plaintiffs and reach a settlement.
VIII. House Bill 3 represents a mixed bag in terms of options for injunctive relief.
While the legislature preempted some of the League’s specific claims it also created an
environment where the most important claims can be heard without threatening the balance of
power.
A. Significant room for equitable relief still exists in the essential areas of registration and
poll worker training.
The areas of election administration most crucial to solving the problems the League
suggests are registration and poll worker training. Thankfully, for the plaintiffs those are also the
areas where there is the most room for injunctive relief.
First in terms of registration, the Secretary still possesses near total discretion in
prescribing a system to register and purge voters from the registration lists. This broad authority
of the executive could quickly be transformed into broad authority for the judicial branch if
specific rules are dictated by the court.
Second, well staffed polls with properly trained poll workers would alleviate the
majority of plaintiff’s complaints. Such poll workers would be able to confirm individuals were
in the right precinct, give a provisional ballot when appropriate, and protect the rights of the
disabled. This is an ambitious and expensive goal, which explains why the state may have been
reluctant to take it on. However, a court would be in less scrutinized place when handing out
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mandates to County Boards of Election than if it was done by the executive. Even if the training
is not completely successful a totally uniform goal curriculum and training standard is something
that could be ordered and have a substantial impact across the state.
Even if a court does not give specific suggestions it would have the right to maintain
jurisdiction until the state complied with its interpretation. It is unlikely that the court would
actually write the rules it would require the Secretary of State to adapt. Should the plaintiffs
prevail they are likely to receive a declaratory judgment with some limited room for equitable
relief.
B. Areas with less possibility of relief should no longer be as concerning to the League of
Women Voters.
The League should be less concerned with the status of provisional ballots and machine
allocation than it was before HB3. Although the bill leaves close to no room for direct judicial
intervention there is now clear statutory language. Polls can be monitored by observers to ensure
that the law is being followed.
The provisions regarding provisional ballots are complicated and often intertwined with
the identification requirements. However, with well trained poll workers and consideration by
the highest ranking election officials the complicated provisional ballots can be used efficiently
and effectively.
The machine allocation process is still flawed, but bringing it out in the open is an
excellent start to finding a solution. It is unlikely that officials in the public eye will consciously
vote bias into the distributions of machines at a precinct. Additionally, while the ration of people
per machine of 175 as the official minimum number of machines is higher than the League
would have liked, it is better than the alleged 200 to 500 people per machine.
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May 11, 2006
C. Injunction relief should be granted in a method that balances the State’s authority over
elections and the rights of individual voters.
It is incredibly difficult in this early stage of the proceeding to determine what if any
relief should or will be granted in this case. Should the process of discovery and the ensuing trial
result in a decision for plaintiffs the court should act cautiously to reach the best settlement
without conflicting with Ohio statutes including HB3. Injunctive relief should be crafted to
influence the creation and maintenance of registered voter rolls and require a comprehensive
state wide poll worker training program. The court should not however dictate to the Secretary
of State how those systems should function as this would infringe on the state’s role and ignore
the expertise of election officials best able to design such a system.
The court should issue a detailed decision of what it finds fault with and give guidance as
to the type of regulation it would find acceptable. The decision can then enjoin the Secretary of
State to design a system that meets constitutional and statutory requirements and submit it to the
court in a reasonable amount of time. Interested parties including the plaintiffs and other groups
permitted by the court should evaluate and comment on the plan. Only upon the approval and
enactment of the new system would the court relinquish jurisdiction. This would be a high level
of involvement for a federal court in a state duty, but the exact nature of the system would still be
left to the state and the essential rights of voters would be protected.
D. As with any large scale change in law additional claims are possible before and after
this suit is decided.
While the League of Women Voters suit could represent substantial changes in Ohio’s
election law it is most certainly not the end of the debate. Depending on how cases pending
around the nation turn out and how smoothly the May and November 2006 elections run a new
wave of litigation could easily sweep the state.
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May 11, 2006
It would be possible for a more narrow claim focused on HB3 to proceed through the
judicial process faster than the League of Women Voters case which is likely to face many
procedural and appellate hold ups given its breadth. While the broad scope was essential to the
core theme of the law suit as being an indictment of the entire election process that range will
slow the arrival of any relief.
E. The function of HB3 in May and November of 2006 could prove crucial to overall
determination.
Finally, while the doctrine of mootness should not currently apply it is possible that the
elections in 2006 would go so well that the League’s claims would appear irrelevant, even in rule
making areas. In addition to HB3, the last of the HAVA requirements also come into play
regarding the statewide voter registration data base. All of these factors create an amorphous
view of Ohio’s election law. Many factors could end up tipping the balance to one regulatory
vision or another. The key is to examine each option at it arises to be prepared for whatever
results may come be they the result of legislative, executive, or judicial action.
IX. Conclusion: The next few years will be a volatile time in Ohio Election Law.
If the state of Ohio was currently facing either a massive law suit challenging almost
every aspect of its election procedures or an incredibly broad statutory change to its election
policies it would be an interesting an important time in state election law. The combination
makes the near future in the state nearly impossible to predict. It is therefore imperative that
both the enactments found in HB3 and the claims made by the League of Women voters be
thoroughly evaluated for what they mean individually and in conjunction. Only though a process
of continual analysis in light of changing circumstances and knowledge can the incredibly
important goal of maintaining a legal and equitable election system be achieved.
30