Now, Ohio House Republicans are attempting to go further than Blackwell ever dared. In an obvious attempt to gain an advantage in the 2012 presidential election, they are attempting to rush through a bill (HB 159) that would make it more difficult for eligible citizens to have their votes counted. Ohio already has a tough voter ID law, but the proposed bill would make the burden on eligible citizens more onerous, requiring that in-person voters present one of four specified forms of government-issued photo identification.
So what's the point of the bill? To disenfranchise certain segments of Ohio's voting populace.
A close look at the bill’s specifics paints an even uglier picture. The bill would require those who vote in person on election day to present one of four forms of government-issued ID: a driver’s license, a state ID issued by the registrar of motor vehicles, a military ID, or a U.S. passport.
Absentee voters are not bound by this requirement, with one big exception: Those who cast absentee ballots in person (which other states refer to as early voting) are required to present one of the required forms of ID. Students of election fraud will recognize that this is exactly backwards. While voting fraud is rare, most documented incidents involve mail-in absentee ballots. Of course, the real motivation for going after in-person voters is obvious. Democrats are more likely to cast in-person absentee ballots, rather than vote by mail, and those are the votes that the bill’s sponsors are seeking to suppress.
There's a shocker. What about a fee waiver? Yes, but you have to apply for a waiver for a state identification card ahead of time according to the bill itself:
(C) An individual who cannot afford to pay the fees prescribed in division (A) of this section, including any lamination fee, may apply to the registrar or a deputy registrar for the issuance to that individual of an identification card or a temporary identification card under this section without payment of any fee.
The registrar shall, by rule, establish standards to determine whether individuals are able to pay the fees prescribed in division (A) of this section. An application made under division (C) of this section shall be accompanied by such documentary evidence of income and expenses as the registrar may require by rule, to determine the individual's ability to pay those fees.
In other words, it's up to the county registrar to determine if you have to pay the fees or not for an ID card to vote, and the burden of proof is on the prospective voter. Technically, it's not a poll tax. Effectively, it's going to disenfranchise thousands of traditionally Democratic voters in 2012 if it becomes law and put a huge burden on Ohio election officials to determine who can vote, meaning that Ohio 2004 is going to look like a picnic by comparison.
Odds are very good this is going to become law. So what can Ohioans do about it?
If Ohio’s bill passes, the lawyers challenging it will surely do their homework and take the time to develop stronger evidence of its negative impact on eligible voters. It will help their case if the Republican-dominated legislature rushes the bill through with scant evidence of voter impersonation fraud, as appears to be their plan. These procedural defects, in addition to the history of vote suppression in Ohio, can also be used to distinguish Crawford and challenge the law on federal equal protection grounds.
There’s also the possibility of a state constitutional challenge to Ohio’s ID bill, if it becomes law. When Missouri passed a comparable photo ID law, that state’s supreme court struck it down under that state’s constitution. It’s true that Ohio Supreme Court justices are elected as nominees of their parties, that Republicans hold a 6-1 majority, and that the court has generally been sympathetic to Republican interests in election cases. But it’s hard to believe that the court could overlook the transparently partisan purpose behind Ohio’s proposed bill, particularly given the absence of evidence that in-person voter impersonation is a serious problem.
Yet another possibility is a race discrimination lawsuit under Section 2 of the Voting Right Act. Ohio’s proposed law is part of a phenomenon in recent years that I’ve dubbed the new vote denial. While the old vote denial involved practices like literacy tests and poll taxes, the new vote denial is much more subtle. Supporters of modern-day barriers to minority participation cite neutral reasons for their practices – most often, as with Ohio’s bill, voter fraud. But the Voting Rights Act doesn’t just prohibit intentional race discrimination, which is notoriously hard to prove. It also bars a voting law or practice that “results in” the denial or abridgement of voting rights based on race. Cases under Section 2 tend to be factually complicated, relying on a combination of statistical, historical, and anecdotal evidence of race discrimination. With some legwork, there’s a good chance that of a successful challenge to Ohio’s law under the Voting Rights Act.
The problem is if the law passes, the damage to Ohio Democrats in 2012 will already be done. Once the 2012 election is over the lawsuits may arrive, but the House, Senate, and White House could be in Republican hands, thanks in no small part to laws like this.
The time to mobilize Ohio Democrats on this measure is now.
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