Suppress the Vote!
Ohio Republicans want to disqualify voters’ ballots for the mistakes poll workers make.
Photograph by J.D. Pooley/Getty Images.
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.
The whole purpose of these provisions protecting voters from poll workers’ errors was to do away with a regime in which “the government worker blunders, and the voter must pay,” says Subodh Chandra, one of the attorneys defending the consent decree. In one 2010 judicial race in Ohio’s Hamilton County, poll workers misdirected hundreds of voters to the wrong precinct table and their ballots were rejected. That dispute was resolved in court, where the losing candidate prevailed.
The GOP’s argument goes even further than pitching ballots tainted by worker error, though. In legislation proposed last year (and withdrawn after it was poised to be rejected by a voter referendum), another provision would bar poll workers from helping voters find the correct precinct if they showed up at the wrong place. That’s right. A proposed GOP reform would ensure that poll workers have no obligation to tell you anything at all if you ask them a question pertaining to precisely the thing they are meant to do—facilitate voting. The language Ohio Republicans tried to insert into the omnibus voting law would provide that “it is the duty of the individual casting the ballot to ensure that the individual is casting that ballot in the correct precinct.”
This presents a deeply troubling new strain in the effort to shrink the vote; a new argument that has nothing to do with stamping out fraud at all. The old argument was that epidemics of (nonexistent) vote-fraud must be dealt with by imposing stringent anti-fraud measures. But the idea that poll workers are either behaving in a way that is suspect or can’t be permitted to help voters vote is even more pernicious. It’s an effort to sow mutual doubt and mistrust at precisely the places where voters and poll workers should have common interests—preventing error. As Think Progress reported last fall, “voting in the wrong precinct led over 14,000 registered voters statewide to lose their vote in 2008.” Indeed that was the second most common reason for tossed ballots in 2008. Instead of solving the problem by sweeping in more votes, the push is to throw them out as well.
What possible reason could the Ohio GOP offer for expressly prohibiting poll workers from assisting voters in completing election forms or locating their correct polling place? One can only suppose that the objection to counting good ballots tainted only by worker error stem from that same noxious paranoid soup that has infected all modern electoral politics: mistrust for voters, mistrust for government workers, and mistrust for the single most basic premise of any democracy—that we want more people to vote, not fewer. Almost every aspect of the recent efforts to “improve the integrity” of the voting system actually ends up undermining the integrity of the system. But punishing voters for poll-worker error and silencing poll workers best placed to help voters achieves new lows in cynicism. The net effect will serve no purpose other than to raise doubts about voting as a whole.
Dahlia Lithwick writes about the courts and the law for Slate.