Judge Marbley Extends Ohio Provisional Voting/ID Consent Decree

U.S. District Judge Algenon Marbley has issued this order extending the consent decree in Northeast Ohio Coalition for the Homeless v. Husted through 2016. The Columbus Dispatch reports here.

This lawsuit was originally filed to challenge disparities in the implementation of Ohio’s then-new voter ID law.  A consent decree in place since 2010 addresses provisional voting by people using the last four digits of their SSN as identification.  The decree was to expire June 30, but was temporarily extended since then, pending consideration of plaintiffs’ motion for an indefinite extension.

Today’s order extends the consent decree through the end of 2016.  It concludes that an extension is warranted, given the failure to achieve the decree’s intended purpose of ensuring that “valid ballots cast by SSN-4 voters are counted.” The court relies in part on an affidavit from former Ohio Secretary of State, Democrat Jennifer Brunner, on her understanding and expectation that “broad enfranchisement and consistency in providing equal and fair access would become institutionalized in Ohio statutory provisions,” due to the consent decree.

The central disputed legal question is whether it’s appropriate for the court to extend the consent decree without finding constitutional violations. The court concludes that it is — and that without the decree, there’s nothing to prevent Ohio counties from going back to the “haphazard” practices that previously prevailed.

Here’s a choice excerpt from Judge Marbley’s ruling:

At the hearing on the Motion, in an unfortunate choice of words, Defendants’ counsel dismissed the purposes or goals of the Consent Decree as “flowery language.” The Court finds nothing “flowery” about the Consent Decree’s instruction that “[a]ll legal votes that are cast by indigent and homeless voters on Election Day will be counted.” The Court will not do Defendants the disservice of presuming that they would oppose such a result, or, that they would prefer that registered voters who cast valid provisional ballots under Ohio law not have their votes counted because county boards of election misinterpret Ohio laws.

According to the Dispatch story, a spokesperson for the Secretary of State says extension of the consent decree doesn’t change current practice, and that Secretary Husted hasn’t decided whether to appeal.  Plaintiff’s counsel Subodh Chandra responds:  “If the consent decree doesn’t really do anything, as he claims, then why fight it?”

Update:  Chandra adds the following by email:

The federal Consent Decree incorporates a directive from now former Ohio Secretary of State Jennifer Brunner to Ohio’s 88 county elections boards.  The directive provides for broadly expansive and enfranchising definitions of all forms of voter ID. For example, “government documents” are broadly defined to include things like letters from public universities. “Utility” bills include not just landline, electric, and gas bills, but cellphone bills (which younger, more transient voters tend to have). And “current” billing statements can be up to a year old. (Some elections boards used to reject anything more than a couple of months old.) Without Secretary Brunner’s directive, Ohio’s 88 elections boards used to apply broadly differing interpretations of voter ID. The bottom line is that the federal Consent Decree is broadly enfranchising where Ohio statutes, elections-board practice, and the whimsy of its secretary of state at any given moment may not be.

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