ProgressOhio

COLUMBUS, Ohio – Secretary of State Jennifer Brunner continued her strong defense of Ohio law Thursday in a brief filed with the Ohio Supreme Court.  The brief supports Secretary Brunner’s directives regarding a longstanding overlap between voter registration and early voting in Ohio.  

“While some continue to inject confusion and chaos into our elections system, I will continue to strongly defend Ohio law and consistently protect the rights of all Ohio voters.  Since 1981, both Democratic and Republican Secretaries of State have recognized, without problem, the right of Ohioans to register and request absentee ballots during this overlap.  When the General Assembly passed no-fault absentee voting, they chose to keep this overlap in place,” Secretary of State Jennifer Brunner stated.

The Ohio GOP, through two Ohio citizens, is seeking to close the long-established overlap and effectively disenfranchise registering Ohioans who want or need to vote absentee.  The Ohio GOP is effectively asking the Supreme Court to create a 30-day waiting period for new registrants before they may receive an absentee ballot – a waiting period that does not exist in Ohio law.

Under the new elections plan put forward by the Ohio GOP, an Ohioan registering to vote today would not be able to request or receive an absentee ballot until October 25th – just 10 days before the election.

According to Secretary Brunner’s brief, filed on her behalf by the Attorney General’s office, the Ohio GOP’s curious arguments would, if enacted, violate the US Constitution and numerous federal laws, including a law that protects the voting rights of Ohioans serving in the armed forces.

Despite Secretary Brunner’s and Attorney General Rogers’ attempts to bring parties to the table to discuss differences and avoid litigation, and despite the fact that the laws in question were the creation of a Republican-controlled Ohio General Assembly, the Ohio GOP has decided to fight it out in court.

In related news, the following organizations have filed amicus briefs in support of the Secretary of State:  1Matters, American Civil Liberties Union of Ohio and American Civil Liberties Union Foundation, Inc., Voting Rights Project, DEMOS, Lawyers’ Committee for Civil Rights Under Law, League of Women Voters of Ohio, Ohio AFL-CIO, District 1199 SEIU, Project Vote, Northeast Ohio Coalition for the Homeless, and United States Hispanic Leadership Institute, Inc. 

The briefs are available from the Ohio Supreme Court at: www.sconet.state.oh.us/tempx/630447.pdf and www.sconet.state.oh.us/tempx/630362.pdf.

Highlights of the brief:

Secretary Brunner identified four reasons for denying the writ of mandamus and upholding Ohio’s long-established right to register to vote and complete an absentee ballot during the 5-day overlap:

1.  The Supreme Court lacks subject matter jurisdiction over this case.  The Ohio GOP is actually seeking an injunction barring Secretary Brunner from enforcing her directive and the Ohio Supreme Court does not have authority under the Ohio Constitution to issue injunctions.

2.  A host of equitable considerations bar relief through mandamus.

a. Doctrine of laches – The Ohio GOP waited too long to file their lawsuit. Because of this, people who registered to vote since September 1st would be on a rolling 30-day “wait” for absentee ballots according to the Ohio GOP.

b. Mandamus is not available – This directive’s subject matter is a discretionary, not a mandatory act, so the writ would be improper.

c. A writ would be contrary to public policy – A writ would inject administrative confusion and retroactively disenfranchise qualified residents who have already voted their absentee ballots, while adding nothing to the safeguards against voter fraud already in place.

3.  The Ohio GOP reading of Ohio law directly conflicts with federal law.

a. The Voting Rights Act of 1970, the National Voter Registration Act of 1973, and the Uniformed and Overseas Citizens Absentee Voting Act, all of which guarantee the franchise, including the absentee ballot, to all residents who register to vote no later than 30 days before Election Day.  Violates UOCAVA and could disenfranchise men and women serving overseas

b. The GOP reading of Ohio law has the practical effect of creating an unconstitutional durational residency requirement for voting, in violation of the Equal Protection Clause of the 14th Amendment to the United States Constitution.  A new registrant would have to register 65 days before the election to vote early, while any other Ohioan living in the state for the same amount of time could vote early.

c. Boards must follow Secretary of State directives, not the decisions of local county prosecutors, and failure to follow the long-established process creates non-uniform treatment that would violate the equal protection requirements laid out by the US Supreme Court in Bush v. Gore, 531 U.S. 98 (2000).

4.  The Ohio GOP has not correctly interpreted the language of the Revised Code.

a.  R.C. 3503.06(A) makes clear (consistent with federal law) that the only relevant consideration in determining a registered voter’s right to vote is whether the prospective voter registered 30 days before the election.

b. Relators completely ignore this straightforward provision, and instead make a tortured semantic argument, based on the statutory definition of a “qualified elector,” to claim that a new registrant must wait thirty days from the date of registration before obtaining an Absent Voter Ballot.

c. Imposing a 30-day waiting period for an absentee ballot would contradict R.C. 3503.06(A) and effectively require voters to register at least 31 days before the election.

In conclusion:

The Ohio GOP has suggested that the duly-elected Secretary of State issued Directives 2008-63, 2008-91 and 2008-92 to encourage voter fraud.  Inflammatory, unsubstantiated and untrue allegations of this nature have, unfortunately, become increasingly common in the more free-wheeling political world.  They have no place in a court of law, and particularly in the Supreme Court.  For the foregoing reasons, the Supreme Court should dismiss the complaint and deny the request for a writ of mandamus.