On Thursday the 6th Circuit Court of Appeals in Cincinnati heard arguments on a federal lawsuit filed by civil rights groups seeking to invalidate two voter laws passed by the Republican-controlled Ohio legislature in 2014.
The laws, both addressing absentee voting, make it difficult for some voters — particularly African-Americans and low-income Ohioans who tend to favor Democrats — to cast ballots, according to attorney Subodh Chandra.
“The pattern is unmistakable, and the result is unconstitutional,” said Chandra, a former federal prosecutor.
But liberal groups aren’t the only ones calling out Ohio’s election process. In Columbus last week Republican presidential nominee Donald Trump said he believes the November election will be “rigged” in favor of Democrat Hillary Clinton.
Trump’s Columbus remark, which he repeated a day later in Virginia, seemed aimed at recent court decisions in swing states like North Carolina and Wisconsin, where separate courts struck down provisions of their voter identification laws.
But the inference that Ohio’s election process is less than pure angered Husted, a Republican who oversees elections in Ohio.
“That does not help this cause and it doesn’t help the cause of democracy to say things like that,” Husted said of Trump. He added: “I’m not just going to beat up on him because it comes from the other side too, when Democrats run out there and say people are being disenfranchised, that’s equally irresponsible.”
Rampant distrust
American voters are willing to believe dirty tricks and cheating happens in elections, according to research conducted in 2012 by Joseph Uscinski and Joseph Parent, political scientists at the University of Miami and co-authors of “American Conspiracy Theories.”
In a national survey conducted before the November election that year, about half of the respondents believed voter fraud would be likely if their preferred candidate didn’t win. Asked whether they thought dirty tricks were used by a candidate, campaign or political group, 85 percent said yes.
The sentiments were not driven by one party over the other, the researchers found. “Each side believes that if they lose, cheating is to blame, and they believe it about equally,” they wrote in a 2014 article.
Allegations of cheating typically surface when elections are close. In 1960, John F. Kennedy was accused of “stealing” the election from Richard M. Nixon. Twelve years after the bitter 2000 election, 40 percent of Democrats believed fraud swung the outcome, Uscinski and Parent found.
But Ohio State University Law Professor Daniel Tokaji said pulling off fraud in a presidential election would be enormously difficult, requiring massive coordination that somehow avoids detection.
“I think it’s far-fetched to talk about the presidential election being rigged,” Tokaji said. “I suppose we might be able to imagine some cheating going on in isolated places, but remember the U.S. presidential election is conducted by thousands of jurisdictions across the country.”
Voter ID laws
Whether it was concern over fraud or an interest in manipulating election results — a frequent claim made by Democrats — a spate of strict voter identification laws have been adopted in recent years, with the strictest laws occurring in states where Republicans controlled the legislature.
The North Carolina law that was struck down July 19 said voters who couldn’t provide one of six accepted forms of identification must cast a provisional ballot. Last week, in an agreement with the Justice Department, Texas agreed to soften its law so that voters who can’t produce the type of identification required can instead sign an affidavit allowing them to vote.
The lawsuits challenging ID laws have said they discriminate against minorities who may not be able to easily get the type of identification required, such as a driver’s license. In Texas, a college ID was not on the list, meaning someone who had a college ID but not one of the approved forms of ID could be turned away.
In Ohio, Republicans adopted a voter ID law in 2005 that requires citizens to present a bank statement, military ID, utility bill, driver’s license or state-issued ID as proof they are who they say they are. Chandra noted that in a court settlement it was decided that voters may also use the last four digits of their Social Security number as identification, which allows voters too poor to have a state ID or bank account to still cast ballots.
The voting laws have gotten more strict in recent years, and the opposition more strident. A 2011 law that shortened early voting, expanded ID requirements and changed poll worker responsibilities was repealed in May 2012 when voting rights advocates collected signatures to force a referendum on the measure.
Ohio’s laws are facing further challenges. In all, seven major cases are pending in federal court, challenging aspects of Ohio voting law, according to a tally kept by Ohio State University law professors.
Chandra, who is representing the Northeast Ohio Coalition for the Homeless, has been waging battle since 2006 against Republican-led changes to the voting laws.
“It turns out there is a huge number of our fellow citizens — numbering in the tens of thousands, perhaps the hundreds of thousands in Ohio — who do not have a photo ID. They don’t have it,” he said. “And to get it will require that they jump through a number of bureaucratic hurdles, some of which they won’t be able to achieve.”
In the current cases, Chandra is challenging mandates surrounding how paperwork to return an absentee ballot must be filled out. He argues that in heavily urban counties where large populations of African Americans live the rules are more strictly enforced than in rural and suburban counties where higher concentrations of white voters reside.
“Ohio’s secretary of state and General Assembly have been trying to skew the voting process in favor of voters that they believe are friendly to them. That’s mostly white voters,” Chandra said. “They’re trying to shave off a certain percentage of the vote for minority voters who heavily trend Democratic, and homeless voters who the evidence shows heavily trend Democratic. That is unacceptable under any conceivable interpretation of our constitution and the Voting Rights Act.”
Husted response
Husted argues that Ohio’s elections are run with integrity. He pointed to safeguards that include pre- and post-election testing and audits of voting machines, paper trails associated with each electronic machine, bipartisan local county boards of elections in charge of receiving and counting ballots, and regular updates of voter registration rolls to make sure only eligible voters can cast ballots.
Recent hacks on the Democratic Party’s computer system raised new concerns about cybersecurity and the voter process, but Husted said Ohio’s voting machines are not connected to the internet, so hacking is not possible.
He also says the rules in Ohio apply evenly to all voters.
In recent years Husted has mailed absentee ballot applications to all 7 million registered voters and sent a card to residents who are eligible but not registered, reminding them to register and vote. Registration roll maintenance has been improved and led to more than 465,000 deceased voters being removed and more than 1.3 million duplicate registrations being resolved, according to the secretary of state’s office.
The purges, though, have been controversial, with groups charging that discrimination is involved in which records get removed.
The efforts to ensure the integrity of the voter lists is important, according to Husted. Voter fraud is rare but does occur, he said, and can influence an election result. A review of the 2012 presidential election by his office found 135 cases of possible voter fraud, 22 of which were referred to law enforcement. While the number is infinitesimal compared to the 5.6 million ballots cast, tight elections — including elections decided by a single vote — are not unusual in Ohio, data from Husted’s office shows.
In the March 15 primary, 10 local races and issues were decided by a single vote, said Husted; since November 2013, 108 races have fallen into that category.
“There is no room for error when just one vote can make a difference,” Husted said.
‘Everything is rigged’
Outside the federal courthouse in Cincinnati Thursday, members of the Black Legislative Caucus spoke about overturning the two Ohio voter laws they say discriminate against minorities.
It’s a fight that will likely continue, and may reach a fever pitch in a year when the word “rigged” is routinely used by both sides to describe any number of declared injustices.
“Donald Trump seems to think everything is rigged and everything is a product of a conspiracy,” Uscinski said. “It should come as no surprise that he feels the same way about elections.”
Still, Trump’s suggestion that if loses it will be because of a rigged election result went too far in Uscinski’s opinion.
“Having a major party candidate call into question all of our voting institutions probably isn’t a good thing,” he said.
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