How the Ohio GOP’s Attempts to Game Voting Rules Backfired

The 2000 presidential election opened the eyes of many in politics to the important lesson that voting rules matter. After that began the proverbial march to the sea of the GOP’s Sherman-like tactics to cut off or diminish the ability to vote of those most vulnerable to disenfranchisement, such as minorities, low-income Americans, single mothers and the like.

In Ohio, the GOP-controlled legislature — without a fight from my predecessor, the Republican secretary of state, Ken Blackwell — began a systematic effort to tinker with Ohio’s voting rules, from requiring people to take a training session before they could register voters, to requiring naturalized citizens to show their papers at the polling place (all of which were struck down by federal courts in 2005 and 2006).

Of course, the “coincidental” moves that were occurring in other states to push for voter identification continued to move forward in various waves, concomitant with nebulous hate campaigns about immigration. But, nearly every time the GOP in Ohio has succeeded in implementing an unfair “reform,” it has backfired on them.

Take a look at the evidence—and rest assured, that while they are still at it, their tactics and political judgment is still backfiring.

Exhibit 1: Carrot and the Stick

In late 2005, the Ohio GOP was facing a statewide ballot initiative that would have created “no-fault” absentee voting, allowing any Ohio voter to vote with an absentee ballot without giving a reason. This was one of a quartet of election-related ballot initiatives that culminated with a ballot measure specifying uniform rules and formulas for redistricting congressional districts and reapportioning state legislative districts.

Losing control of the line-drawing process, which they had controlled for more than two decades, was one of the GOP’s greatest fears. So they looked for ways to tell the public not to support these four ballot issues. GOP legislators tried to kill or “moot” the expansion of absentee voting by passing a law, H.B. 234, and telling the public that a constitutional amendment wasn’t needed (while it avoided the state having to pay postage on the return of the ballots).

Their plan was to get a “no” vote on the first issue, and they assumed the other three would fail in tandem. It worked. All four issues were defeated at the ballot. But state law now allowed anyone to vote an absentee ballot without stating a reason.

Traditionally, on Election Night, absentee ballots are counted first (because they’re already at the board of elections when the polls close). From the political side, we call a heavy emphasis on absentee or early voting “banking” your votes before Election Day. Before the advent of no-fault absentee voting, traditional absentee ballots tended to be voted more heavily by Republicans. But no more.

No-fault absentee voting created a way for grassroots organizers (many of whom are Democratic) to reach out to segments of their constituency that traditionally had difficulties getting to the polls. By 2008, especially with the strategic use of early voting by the Obama presidential campaign, “no-fault” absentee voting became a strong tool for banking Democratic votes. Republican plans to retain power by changing the voting rules backfired.

Exhibit 2: Kill the Messenger

In mid-2008, the Ohio GOP decided that Ohio’s secretary of state (me) was issuing too many directives to Ohio’s 88 county boards of elections. Unlike in some states, Ohio’s secretary of state is required (and local boards of elections are required to follow) directives that are issued to interpret and apply the maze of state and federal election laws.

The Ohio Senate (sort of) negotiated with me about the fact that it would, in the middle of the presidential election year, pass a law requiring advance posting of directives for public comment in order for the directives to become “permanent” directives. I shuffled along with it like a prisoner who was already handcuffed. They apparently thought this would give them more control over the process.

Before the bill took effect on September 12, 2008, my staff and I posted the last of nearly all the directives needed for a smooth 2008 general election, just before midnight on September 11, 2008. The last directive posted declared a long list of directives in place for the 2008 election to be “permanent” directives. The tide had already gone out on their attempt to wade into the province of the executive branch.

The GOP decried the number of directives issued by the secretary of state’s office. The boards of elections, however, for the first time, had uniform poll worker training standards and rules throughout the state, tools such as poll worker reference “flip charts,” rules for observers at polling places, rules for backup paper ballots in the event of electronic machine failure, guidelines for determining the minimum number of voting machines for a polling place, polling place arrangement guidelines and rules for posting precinct results and transporting ballots and voting machines, all well in advance of the 2008 general election. Contrary to the GOP’s intention, we were helping local election officials.

This “election roadmap” later became the basis of a legal settlement with the League of Women Voters that I settled after inheriting it from my predecessor, Ken Blackwell. The roadmap was written into a six-year federal consent decree that remains in place today for Ohio’s upcoming presidential election. You could call that a soft backfire, since it operated for the greater good.

Exhibit 3: Force-Feeding

In late summer of 2008, the Ohio GOP-controlled legislature hatched another plan to tinker with the absentee balloting process.

It forced $3 million on the Ohio secretary of state’s office in an attempt to require the statewide distribution of absentee ballot applications to all Ohio registered voters. With the advent of no-fault absentee voting, many large, urban counties (which traditionally lean Democratic) had routinely since 2006 been mailing unsolicited absentee ballot applications to their voters as a way to alleviate long lines on Election Day. But the less-populated counties, more largely rural and Republican, did not have the same level of local financial support—or the perceived need—to do the same unsolicited absentee ballot applications. Some boards even stated that they recognized that “many” organizations (in reality, the Ohio GOP) generally mailed applications to their constituency, and a mailing from the board would be duplicative, expensive and even confusing.

The GOP-controlled legislature still believed it knew better. At a time when government revenues were about to begin a steep decline, in late summer 2008, they appropriated the money without conferring with the Secretary of State on how much was needed to get the job done. If all of the state’s boards mailed ballot applications to all of Ohio’s voters, the counties would be left holding part of the tab—which could have been a sizable cost. But the GOP had inadvertently included language to let counties opt-out, and some small counties did.

The large counties, however, took their chances and mailed the absentee ballot applications. The result for the 2008 presidential election was that the large counties did what they usually did, this time at state expense, thanks to the Ohio GOP, and the legislature’s ill-advised experiment — you guessed it — backfired.

Exhibit 4: Rig the Game

Even though the 2008 presidential election in Ohio was generally smooth, I knew that Ohio’s election processes, a mishmash of federal and “fixative” state overlays, could work better—for voters, poll workers and election officials. The day after that election, I informed tired reporters that the secretary of state’s office would convene a statewide summit, moderated by Larry Norden of New York University’s Brennan Center for Justice, to reach consensus across a broad spectrum of political and philosophical beliefs about what was right with and what could be improved in Ohio’s election process. It eventually resulted in bipartisan legislation that the Republican-controlled Senate refused to approve before it adjourned at the end of the 2010 session. The bill died.

The bill was resurrected in part but severely mutated in the Ohio legislature’s next session in 2011—the current election cycle—in the form of H.B. 194.

As with the aftermath of Ohio’s disastrous 2004 presidential election, voting rights advocates sprang up against H.B. 194, seemingly out of Ohio’s cornfields and urban alleys. Hence, Fair Elections Ohio (FEO) formed as a strong coalition of voting rights advocacy, labor, political and religious organizations to fight voter suppression in Ohio. With the help of President Obama’s campaign organization, Organizing for America, FEO successfully stopped the law from taking effect with a statewide referendum petition that has qualified for the ballot this fall.

With nearly 500,000 signatures collected for the effort, Ohio voters this fall have a chance to decide if they want H.B. 194 to become law; that is, if they want to make it harder to vote in Ohio and harder for their votes to be counted. My educated guess is that they will not. Can you see the backfire coming?

Here are a few things that H.B. 194 would do if permitted to become law:

• Reduce by mail absentee voting to three weeks from five weeks and reduce in-person absentee voting to two weeks.
• Ban in-person absentee voting on Sundays and Saturday afternoons.
• Ban in-person early voting during the last weekend before the election.
• Make it more difficult for the boards of elections to open extra offices in the community to make it more convenient to vote early.
• Stop local Election Boards from sending absentee ballot applications unsolicited to all voters.
• Stop local Elections Boards from paying postage on return absentee ballot requests or on the return of absentee ballots.
• Impose technical reasons not to count votes.
• Order a minimum voting precinct size in cities and villages only.
• Prohibit someone with no ID from having their ballot counted.
• Eliminate the 10-day period after the election to provide missing ID.
• Strike down disclosure rules for corporations participating in campaigns.

Now the GOP has realized that a referendum on voting rights on the presidential election ballot in Ohio this fall just might bring out voters who would be harmed by the voting law changes (who generally don’t vote as conservatives).

The GOP legislature appears to have been first prompted on this slight problem by the Republican secretary of state who asked for repeal of H.B. 194 after the referendum issue was certified for the ballot, to “avoid confusion” about voting rules this fall. That was the proverbial rope that loosed the anvil that fell on the heads of Ohio GOP legislators, who upon coming to, have slowly realized that, once again, their attempts to toy with voting rules — you guessed it—backfired.

As I write this, the President of the Ohio Senate is offering a “peace pipe” to state Senate Democrats, who have already asked for a moratorium on any new voting laws before the general election this year. Legislative Republicans say they want to work with the legislature’s Democratic members to adopt new voting rules for the fall.

But these Republicans remain splintered about whether they can even repeal H.B. 194 and about which voting law changes they want before this November’s election, while the Republican secretary of state says no more changes before the fall election. They are stuck in another mess of their own making.

We at Fair Elections Ohio are watching with interest and have the backing of the Obama campaign to circulate another referendum petition if the Ohio GOP tries again to change voting laws before the general election. We’re adamant about protecting Ohio voting rights and are making a two-pronged argument: 1) it’s too late to change the voting rules (especially for absentee and provisional voting) before the general election; and 2) the right of referendum is a specific, state constitutional right reserved to the people of Ohio.

In other words, repealing H.B. 194 and passing new parts of it is nothing more than a GOP sleight of hand, and Fair Elections Ohio remains ready to go to court to defend the right to a citizen referendum. Our referendum petition cannot be struck from the ballot. Nor do we intend to withdraw it. The issue is exactly where it needs to be—in the hands of the voters.

Perhaps the Ohio GOP would be best advised to put its efforts into winning an election than changing its rules. If the Ohio GOP attempts to exercise further political damage control by changing Ohio’s voting laws and circumventing the H.B. 194 referendum, the evidence points overwhelmingly to—you guessed—another big backfire!