Concerned about the coming wave of restrictive voting laws in their state, black Ohio leaders are working to get a “Voters' Bill of Rights” on the ballot this fall. But the state’s top legal official, a Republican, is putting obstacles in their path. And some voting law experts suggest he’s twisting the law to do so.
Ohio remains the single most pivotal state for presidential elections, so its rules for voting could well have major national implications come 2016.
The Ohio Legislative Black Caucus (OLBC) wants a constitutional amendment that would declare voting “a fundamental right,” expand early voting, and make it harder to use challenges to disqualify ballots, among other measures. The effort is a response to an aggressive push by state Republican lawmakers to make voting more difficult. Bills that would cut early voting, end same-day registration, and make it harder to get an absentee ballot are likely to pass the GOP-controlled legislature in the coming weeks.
There is no explicit right to vote in the U.S. Constitution—an omission some lawmakers want to fix.
Earlier this month, the OLBC submitted its proposed amendment to the office of Ohio Attorney General Mike DeWine, a Republican, along with more than 1,000 preliminary signatures, as required by law. But last week, DeWine announced that he wouldn’t approve the measure, citing what he called “misrepresentations” in the text of the proposed amendment.
That setback means the measure’s backers can’t start collecting the more than 350,000 signatures they’ll need to get it on the ballot this fall. First, they’ll need to gather another 1,000 preliminary signatures, re-submit a new version of the amendment, then hope for DeWine’s signoff. A different state office will also need to confirm that the amendment shouldn’t be split into two or more pieces. Only then can the proper signature-gathering drive begin.
OLBC officials have said that’s what they plan to do. But the denial will cost them precious time and resources.
And two experts on federal voting law tell msnbc that in their view, the rationale for DeWine’s denial—that the petition’s language misrepresents federal voting law—is off the mark.
DeWine’s rejection raised problems with two separate parts of the petition summary. First, it noted that the proposed amendment would allow people to vote if they showed a college ID, but didn’t mention that federal law does not allow college IDs for first-time voters registering by mail. Second, the rejection complained that the petition states that currently under Ohio’s constitution, people who don’t vote for four years must re-register. But again it doesn’t mention that a federal law passed in 1993, the National Voter Registration Act (NVRA), provides for a different process and supercedes state law.
The petition “thus makes a misleading representation of current law affecting Ohio voters,” DeWine’s rejection concluded.
But Gerald Hebert, a former top official in the voting rights section of the Justice Department and a long-standing expert on federal voting law, said via email that DeWine got it wrong on both counts.
On the first issue, Hebert said that under the Help America Vote Act (2002), first-time voters who registered by mail can provide a copy of a valid photo ID. “So if the first time voter is a student with a college ID that contains a photo, that would suffice,” Hebert wrote. On the second, Hebert said the NVRA and the Ohio constitution are, in fact, consistent on the issue of requiring inactive voters to re-register.
Daniel Tokaji, a prominent election law expert at Ohio State University, went further. “The cited portions of the petition accurately state current Ohio law.,” said Tokaji via email. “In my view, the AG’s letter is really a reach.”
Not everyone agrees. “In context, the AG is not wrong,” Justin Levitt, another top election law expert at Loyola Law School, wrote in an email. But even Levitt called the inaccuracies cited by DeWine “hyper-technical.”
Even if DeWine can make a legitimate argument for rejecting the Voters Bill of Rights petition, it seems clear that he’s not exactly rolling out the welcome mat for the measure. Given the energy spent by state Republicans lately on making voting more difficult, perhaps that’s not surprising.