So much ink has been spilled on how vote suppression will affect the 2012 presidential election, one hesitates to write another word. Ari Berman has done terrific work uncovering the ways in which the new voting laws have aimed at suppressing the votes of elderly, minority, student, and other voters—particularly in swing states—who tend to vote for Democratic candidates. Wendy Weiser of the Brennan Center for Justice has an indispensible primer on the 22 new laws and two executive actions that will severely restrict voting in 17 states in November. These laws, often modeled on draft legislation from the American Legislative Exchange Council, a consortium of conservative state legislators, will have the effect of disenfranchising millions of voters, all in order to address a vote fraud “epidemic” that should be filed somewhere between the Loch Ness Monster and the Tooth Fairy in the annals of modern fairy tales. As Weiser notes, none of this is casual or accidental: “If you want to find another period in which this many new laws were passed restricting voting, you have to go back more than a century—to the post-Reconstruction era, when Southern states passed a host of Jim Crow voting laws and Northern states targeted immigrants and the poor.” Whether it’s onerous (and expensive) voter ID rules that will render as many as 10 percent of Americans ineligible to vote, proof of citizenship measures, restricting registration drives,cancellation of Sunday voting, or claims that voting should be a privilege as opposed to a right, efforts to discount and discredit the vote have grown bolder in recent years, despite vanishingly rare claims of actual vote fraud. The sole objective appears to be ensuring that fewer Americans vote in 2012 than voted in 2008. But as strange as the reasons to purge certain votes have been around the nation, things have grown even stranger in recent weeks in Ohio, where GOP lawmakers have gone after not only voters but the federal courts, in an effort to wiggle out of statewide voting rules.
First, some background: In 2010, a consent decree—an order issued by a judge setting out a voluntary agreement by the parties in a lawsuit—was entered into a federal lawsuit filed by the Northeast Coalition for the Homeless and then-Secretary of State Jennifer Brunner. The original lawsuit challenged a 2006 Ohio Voter ID law and other provisional voting laws that made it difficult for homeless Ohio citizens to vote. Among the things established by the consent decree was this: Poll worker error should not be the reason for tossing out otherwise good ballots. That seems reasonable enough. While nobody has uncovered an epidemic of vote fraud, it’s true that a good deal of what goes wrong with elections is due to the human mistakes of poll workers. And presumably if those mistakes are not the fault of the voter, it makes no sense to reject that ballot.
But these and other provisions were challenged last month when Tom Niehaus, president of the Ohio Senate, and Lou Blessing, a state representative, filed an action in the Ohio Supreme Court calling the consent decree into question. A few weeks ago the federal district judge who had issued the 2010 consent decree, ordered the two to stop challenging it in the state Supreme Court because, as he explained, as leaders of Ohio’s General Assembly suing in their “official” capacities, they were bound by the very consent decree they were challenging. Now Ohio Secretary of State Jon Husted says he will seek to invalidate the consent decree, including the obligation to count ballots where government workers make mistakes. He will file a brief making his case by June 6. That means that the person in charge of administering the presidential election in Ohio is seeking to be relieved of his obligation to count ballots that, according to Ohio law, are valid. Should this battle continue to escalate, it could set up a massive confrontation between federal and state courts over state election law.