Those voters within a “narrow class” who may be disparately impacted by changes to Ohio voter law are “insignificant,” according to a decision filed Sept. 13 by a majority of circuit judges in the U.S. Court of Appeals for the Sixth Circuit in Cincinnati.
The judges said that because changes to Ohio’s provisional and absentee ballot voting laws would disparately impact a small number of African-American and homeless voters, and not all Ohio voters, those voting law changes are constitutional, overruling the U.S. District Court for the Southern District of Ohio in Columbus on many of its rulings.
The Northwest Ohio Coalition for the Homeless, Columbus Coalition for the Homeless, and the Ohio Democratic Party filed a lawsuit with the U.S. District Court for the Southern District of Ohio against John Husted, Ohio Secretary of State, after two Senate bills were signed into law in 2014 that altered a settlement the two parties had reached over disputes in voting laws.
The parties had agreed in 2010 to allow each county’s board of elections to accept provisional ballots from voters who don’t provide a birth date or an address.
Senate bills 205 and 216, when signed into law in 2014 , automatically altered that decree and changed Ohio voting laws in several ways. It allowed election boards to reject ballots of absentee voters and provisional voters whose birth date or address didn’t match voting records, reduced the amount of time people had to fix those errors from 10 days to seven, and limited the ways in which poll workers can help in-person voters who can’t read or write legibly, according to court documents.
The Northwest Ohio Coalition for the Homeless, Columbus Coalition for the Homeless, and the Ohio Democratic Party argue that the changes create an undue burden for minority voters and those who are homeless, citing the Voting Rights Act of 1965 and the first, 14th, and 15th amendments. When the groups sued the Ohio Secretary of State, the district court agreed with the plaintiffs, saying that Ohio had no justification for enacting Senate bills 205 and 216.
The district court heard in witness testimony that the state does not keep data on the race or ethnicity of its voters and acknowledged that there is no way to measure the magnitude of the burden the Senate bills place on minority voters. The court relied on the plaintiff’s witness testimony from Dr. Jeffrey Timberlake, who examined voter and county-level data from the last four elections. He testified with evidence that showed higher rates of absentee ballot rejection among African-American voters and higher rejection rates for high-minority counties.
But Husted appealed the district court’s decision. In the Sixth Circuit Court of Appeals decision filed Sept. 13, the court said the Northwest Ohio Coalition for the Homeless, Columbus Coalition for the Homeless, and the Ohio Democratic Party failed to show proof that Senate bills 205 and 216 have a disparate impact on African-American voters.
And while the Sixth Circuit Court of Appeals acknowledged that the data on minority voters does not exist, they determined that those who would be disparately impacted by changes to Ohio voting law are in a “narrow class” of voters and that because the changes don’t place a burden on all Ohio voters, that “narrow class of voters” is “insignificant.”
“The district court erred by weighing Ohio’s regulatory interests against the burden that the challenged provisions uniquely place on homeless and illiterate voters,” wrote the judges in the court of appeals decision.
“We are working through the details of this ruling, but upon our initial review, we believe it to be a reasonable outcome,” said Husted in a press release Sept. 13. “The most important issue in this case was to ensure that voters who cast an absentee or provisional ballot have to provide identifying information to make certain they are legally registered to vote. This ruling upholds Ohio law in that respect so that we can protect the integrity of elections in Ohio.”
The plaintiffs in the case decided to appeal the Sept. 13 decision, according to Josh Eck, Ohio Secretary of State Press Secretary, in a statement Oct. 6.
Brian Jones, executive director for the Northeast Ohio Coalition for the Homeless, said Oct. 6, “We asked for the entire appeals court to weigh in.”
He said he was impressed by the opinion of the dissenting judge in the Sixth Circuit Court of Appeals decision.
“The dissenting judge had a wonderful opinion that he filed. I’ve never seen a judge who has gone through and put pictures of people who have died trying to secure the right to vote,” said Jones.
The 38-page dissenting opinion, written by Judge Damon J. Keith, begins with, “Democracies die behind closed doors,” and includes 10 pages of biographies.
“The majority’s decision to gut the factual findings of the district court and to advance legal standards without precedent in order to shut the most vulnerable out of the political process must be subjected to the natural antiseptic of sunlight. The unfettered right to vote is the bedrock of a free and democratic society—without it, such a society cannot stand.”