Why Partisans and Election Law Shouldn't Mix: See Ohio

Last June, Ohio’s Republican state legislators sought to pass an extremely strict voter ID law, with deeply disturbing implications for minority voters. It would have been among the strictest in the nation, requiring voters to show a government-issued ID with virtually no recourse for those lacking the necessary documents. But the opposition came from an unexpected place—Ohio’s Republican Secretary of State Jon Husted.

"I want to be perfectly clear, when I began working with the General Assembly to improve Ohio’s elections system it was never my intent to reject valid votes," he said. "I would rather have no bill than one with a rigid photo identification provision that does little to protect against fraud and excludes legally registered voters' ballots from counting." Husted's opposition played a big role in killing the bill. It was an exciting moment. The secretary had positioned himself as a new kind of Ohio elections official; in a state with a history of messy and unfair elections, Husted said he would decrease partisanship. He focused particularly on ending the gerrymandering that drew districts to benefit one party but he also talked about he need for overall reform. "We need to change the system," he said.

But these days, Husted is locked an embittered battle with Democrats and voting rights activsts who argue he’s tilting the playing field to his team. The latest news is particularly bad. After weeks of Husted getting slammed for his decisions on early and weekend voting that could decrease turnout in Democratic areas, last Friday, a federal district court ordered Ohio to offer early voting in the three days prior to Election Day, just as the state did in 2008. Eighty-eight thousand voted on those three days; in the state’s biggest counties, turnout during those days was disproportionately African American.

By Tuesday, however, Husted had announced his plan to appeal the decision—and he directed local election boards not to implement the court-ordered voting hours, at least for now. “Announcing new hours before the court case reaches final resolution will only serve to confuse voters,” he argued. (Update: In court documents, Husted has affirmed that his only intention was to avoid confusing voters and not to disobey the judge.) The outrage from voting-rights advocates and Democrats was swift. And they weren't alone: On Wednesday, the federal judge ordered that Husted personally attend a hearing next week to answer for his decision. It was a pretty serious smack-down.

In a year of pitched voting-rights battles across the country, the Ohio situation may not seem all that remarkable—even though, as a battleground state, it's obviously important. Voter ID laws passed by Republicans in states like Pennsylvania, which require voters to show government-issued photo ID, have threatened to keep hundreds of thousands of voters who are legitimately registered from casting a ballot. In Florida, a law limiting voter registration drives has crippled Democratic outreach efforts and favored Republican ones. Purges of the voter rolls in several states have come under scrutiny for kicking qualified voters off voting lists.

But Husted’s case is different. The conflict surrounding him demonstrates just how structurally flawed the idea of partisan election officials really is. Ohio’s been known for unfair elections, and Husted seemed to finally offer an antidote. In 2004, extremely long lines, especially in Democratic areas, led many to criticize the state, as some voters simply gave up after waiting hours in line. In the extremely tight presidential election between George W. Bush and John Kerry, many Democrats speculated that those voters might have made the difference and given Kerry a victory. As a result of the mess, the state passed reform to allow all voters cast their ballots by mail (absentee voting) without giving a reason. As a result of the mess, in 2006, the state passed reform to allow all voters, without any need for a reason, to vote early.

Both of Husted’s predecessors, Republican Kenneth Blackwell and then Democrat Jennifer Brunner, tilted the odds in their respective parties’ favor. “Both Blackwell and Brunner made decisions which aimed to benefit their political party,” explains Rick Hasen, a law professor at the University of California-Irvine and author of the Voting Wars. In a chapter of his book, Hasen details how during his eight years in office, Blackwell was infamous for policies that disenfranchised (mostly Democratic) voters. Blackwell oversaw the disastrous 2004 election. In 2008, Brunner tried to reject absentee ballots sent out by the McCain campaign. Hasen ends the chapter noting Husted’s rise as a potential figure promising to move beyond the partisan politics that had shaped the position.

At first, it looked like Husted would live up to his promise. In addition to his vehement opposition to voter ID, Husted was also proactive. He's pushed online voter registration, which would both reduces costs and makes registration easier, and he's allowed voters to change their addresses online, so fewer voters show up at the polls and have to cast provisional ballots. Perhaps most importantly, this year, for the first time, Husted decided to send all state voters applications to vote by mail, making it significantly easier for those who might have trouble getting to the polls to send in their votes.

But then the controversies began.

In June, voting-rights groups filed a lawsuit against a strange Ohio provision that disqualifies any ballot cast at the wrong precinct—even though such errors are generally the fault of poll workers. The measure particularly hurt those in urban counties, where the vast majority of polling places serve multiple precincts and giving someone the wrong ballot is easy to do. The case seemed like a no-brainer; in what world is it fair to lose your vote because someone else screwed up? But Husted joined the state attorney general’s fight to keep the provision, arguing the issue did not rise to the level of unequal treatment under the law and did not create a "severe burden" to voting. But the provision quite directly disenfranchises legitimate voters who simply followed poll worker instructions. The fact that those disqualified would be disproportionately Democrats made the entire issue particularly fishy. The judge ruled against the state officials, though the AG is appealing the decision.

Then there are the early voting fights. This week’s news comes after months of fighting. In an extremely convoluted process, the legislature passed legislation this year to end early voting on the Friday before Election Day, cutting out the weekend many black churches used to bring congregants to the polls. But one exception, allowing military voters residing in Ohio to vote during those three days, gave the Obama campaign grounds to sue, arguing that the law did not give voters equal access to the ballot. While several legal experts said the case was on shaky ground, the judge, siding with the campaign, ruled that the state needed to offer the weekend voting hours. Then Husted issued his directive and appealed the ruling.

When it comes to implementing the new weekend hours before Election Day, Husted argues the case is still up in the air while on appeal, and that announcing new hours and then cancelling them would leave voters more confused. It's a real concern; keeping changes to a minimum in the weeks before Election Day is key to keeping voters informed. But his decision to support the law in the first place leaves many suspicious. “It’s hard to understand [the cutbacks in early voting],” Hasen says, “as anything other than the Republican legislature looking for ways to make it harder for Democrats to vote.” 

Husted’s latest actions come after another early-voting controversy—this one about the other weekends and evenings in the state’s five-week early voting period. While the legislature ended the early voting period early, there were still a number of weekends and evening hours seemingly available for early voting. In Ohio, county boards of elections are bipartisan; the two Democrats and two Republicans on each board decide the voting hours in their county. But the system turned hyper-partisan this year, when Republicans in largely Democratic counties voted against extended hours at night and on the weekends. Ties are broken by Husted, who decided in favor of more limited hours. That meant that the counties most likely to vote Democratic would not be not able to keep polling places open as late as they did in 2008. 

The move prompted an outcry from Democrats and voting rights activists. The large urban counties in the Buckeye State have previously relied on extended hours to cater to low-income voters, who are more likely to have inflexible work schedules and transportation difficulties. Husted’s decision will impact black voters significantly more than other groups. In counties with large African American populations, communities vote at much higher rates during early voting. A recent report from the local voting rights group, Northeast Ohio Voter Advocates, shows that in Cuyahoga County, the state's most populous, black voters made up 56 percent of 2008 early in-person voters, while making up 28 percent of the population. Similarly, in Montgomery County, black voters make up 20 percent of the population and a whopping 52 percent of 2008 early voters. You can see the trend across the five Ohio counties with large black populations. 

As Husted came under intense fire for his decisions, the secretary of state decided he had the authority to set early voting hours across the state.  It was the first time any Ohio secretary of state had done so. He issued a state directive taking away local board authority and mandating standard hours across the state—with no weekend voting. Husted even went so far as to fire two county elections officials when they tried to defy the restriction. 

Husted has reasonably legitimate arguments for his decision. Unlike voter ID debates, they’re not grounded in fake frauds. He argues that consistency matters. "This will be the first time in Ohio that all voters that participate in this election have the same rules statewide," Husted's press secretary, Matt McClellan, told me with evident pride when I asked him about the restricted early voting hours. McClellan points to the uniformity not only in hours but also in absentee ballot applications. Everyone in Ohio will be able to vote Monday through Friday, between 8 a.m. and 5 p.m., starting October 2. Beginning October 22 through November 2, evening hours go up to 7 p.m.

But while voters in Ohio have more options than those in, say, Pennsylvania, where there's no early voting and absentee ballots require a reason, voting rights activists are nonetheless justifiably outraged. A consistent rule does not have consistent impact. "It's a ridiculous idea because of the differences, the very large differences [between] counties," says Norman Robbins, the research director for Northeast Ohio Voter Advocates. "His being consistent is a race to the bottom."

At this point, Husted’s partisanship is hard to miss. As if to confirm his critics’ fears, he was recently announced as a speaker at the state summit of True the Vote, a controversial Tea Party group best known for sending white poll watchers out to largely black polling sites in Houston, Texas, prompting loud accusations of voter intimidation. (He later cancelled the appearance.)

One election law expert puts in bluntly: “The hours of early voting in Ohio are the product of a partisan process, not a nonpartisan process,” says Ned Foley, the head of the Moritz Law Center at Ohio State University and an election law expert. "I’d imagine a fair and impartial process would have resulted in some degree of weekend hours for the state.”

After this election, it’s hard to imagine anyone seeing Husted as a nonpartisan negotiator. It’s a sad for a politician who promised to end the partisanship that’s tainted so many Ohio elections and left many questioning whether the results were fair. But it may also be inevitable. Husted is, after all, a long-standing Republican politician, having served as both a state senator and speaker of the house, and his relationship to the party must impact at least some of his decision-making. Furthermore, Democrats can’t fully trust his decisions when they benefit Republicans, no matter what rationale he offers.

Once again, sadly, one party will question whether the results in Ohio were fair—and this year, with a close presidential election on the line, the rancor will likely be worse than ever. You have to wonder if the problem isn’t Husted himself, so much as a deeplly flawed system in which a party-affiliated politician decides the rules for what should be an impartial process. 

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