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Ohio Violating Federal Voting Rights Law by Denying Absentee Ballots

Advocates defend voters and urge state to accept thousands of ballot applications made on form developed by McCain campaign.

October 2, 2008

For Immediate Release

Contact: Tim Bradley, BerlinRosen Public Affairs, (646) 452–5637

Advocates Defend Voters and Urge State to Accept Thousands of Ballot Applications Made on Form Developed By McCain Campaign

New York – Today attorneys at the Brennan Center for Justice at NYU School of Law and the ACLU of Ohio, and Ohio State University law professor Dan Tokaji filed an amicus brief challenging the Ohio Secretary of State’s decision to deny absentee ballots to thousands of voters simply because the voters failed to check an unnecessary box on an application created by the McCain campaign. Citing direct violations of federal voting rights law, voting advocates argued that denying the applications on grounds that have nothing to do with voter’s eligibility would disenfranchise thousands of voters and open the door to unfair conduct, manipulation, and partisan mischief just one month before the 2008 election.

“Ohio is shutting the door on thousands of voters because they didn’t check a meaningless box, when their eligibility is not in doubt,” stated Wendy Weiser, who directs the Brennan Center’s work on voting rights and elections. “Disenfranchising voters for imperfect paperwork is not a fair way to run elections and violates federal law,” Weiser added.

“The State has failed to identify any legitimate grounds for denying ballots to voters who do not make check marks on their applications. This is an important opportunity for the Ohio Supreme Court to show that it won’t tolerate manipulation of the electoral process,” said Adam Skaggs, Counsel at the Brennan Center.

“The Ohio Supreme Court should set an example for the rest of the country and make clear that the law does not allow technical barriers to voting,” added Ohio State University law professor Dan Tokaji.

On September 5th, Ohio Secretary of State Jennifer Brunner announced that the state would not accept thousands of absentee applications solely because voters failed to place a check in an unlabeled box at the top of the application. The applications were submitted by the John McCain campaign and represent the ballot applications of thousands of Republican supporters.

As the brief field today explains, the box is hardly recognizable as a box requiring a checkmark, as it sits alone in a boxed section at the top of the application next to the sentence, “I am a qualified elector and would like to receive an absentee ballot for the November 4, 2008 General Election.” The unlabeled square appears alone on the application, which has no paired “yes” or “no” boxes traditionally used when mandatory check-boxes are included on government forms.

“It is impossible to interpret an applicant’s failure to ”check" the box as a disavowal of their eligibility and desire to receive a ballot. Even assuming that a failure to check the unlabeled box is an error, the mistake is plainly immaterial to an individual’s voter qualifications," Jennifer Rosenberg of the Brennan Center said.

“Under Ohio law, the only factors that bear on a citizen’s qualification to vote are whether or not he or she is over the age of 18, a United States citizen and resident of Ohio, and has not been convicted of a felony or adjudicated mentally incompetent without restoration of her voting rights. Missing a check mark provides no material information about any of those qualifications, and by federal law the State is obliged to give these voters ballots,” continued Rosenberg.

In Ohio and elsewhere, election officials have in recent years adopted a range of policies and procedures that have had the effect of disenfranchising voters because of trivial errors.

Just four years ago, Ohio’s previous Secretary of State tried to enforce a policy that would have invalidated thousands of voter registrations because voters did not submit them on “white, uncoated paper of not less than 80-pound test weight,” even though the state itself did not print voter registration forms on such paper.

Wisconsin’s Attorney General recently sued that state’s election agency in an attempt to remove voters from the registration rolls if their data was not successfully cross-checked against motor vehicle and social security databases-a process which fails 22% of the time in Wisconsin because of typos, data entry errors, and other ministerial mistakes, and which a federal court struck down in Washington State as violating the Voting Rights Act.

Similarly, Florida launched a matching program—with less than a month to go before that state’s registration deadline—that has already blocked the registrations of thousands of voters because of typos and other trivial errors.

The full brief can be viewed by clicking here.