This week has been rough for voters in Ohio.
In the span of just two days, they have lost a full week of early voting and their only chance of same-day registration, and hundreds of thousands of still-eligible voters were denied absentee ballot applications. A third blow fell Tuesday afternoon, when a panel of judges from the Sixth Circuit Court of Appeals upheld a law that allows the state to throw out absentee and provisional ballots that have errors as small as leaving out one’s middle name or zip code.
The two judges who ruled to uphold the law are white and were appointed by Republican presidents. The judge who dissented is African American and was appointed by Jimmy Carter, and he blasted his colleagues for backing a policy that “dishonored the struggle for the right of the most vulnerable to vote.”
“I am deeply saddened and distraught by the court’s deliberate decision to reverse the progress of history,” Judge Damon Keith said in his blistering dissent. “The unfettered right to vote is the bedrock of a free and democratic society — without it, such a society cannot stand.”
Keith accused his colleagues of ignoring the factual findings of the lower district court, including that “minorities use provisional ballots more often than whites, and in presidential election years, the absentee ballots and provisional ballots of minority voters are more likely to be rejected than those of white voters.”
“The unfettered right to vote is the bedrock of a free and democratic society — without it, such a society cannot stand.”
The Northeast Ohio Coalition for the Homeless sued the state two years ago, saying that tossing provisional and absentee ballots for small typos and errors was “equivalent to literacy tests and other forms of illegal intimidation used to deny African-Americans the right to vote.”
If a voter’s name, birthday, or address on their ballot does not exactly match the state’s records — even if it’s the state records that have a typo or error — the ballot can be thrown out. For example, if the state has “William” on file but the voter writes “Bill” on his envelope, or if the voter signs his name in cursive in the “print name” section, the vote can be invalidated. The law also limits the ability for voters to find out and correct such a mismatch, shortening the window for doing so from 10 to seven days.
Cleveland Attorney Subodh Chandra, who represented the homeless voters, told ThinkProgress that not only are Latino and African-American voters more likely to vote provisionally, majority-white counties and majority-African American counties are enforcing the law unequally.
“Smaller, rural counties in Ohio are counting votes they’re not supposed to under these laws, while larger, urban counties are disenfranchising voters for the same errors,” he said. “Members of county boards of elections testified that this is going on, and the Secretary of State has done absolutely nothing to correct it. This is unequal application of the law based on race, and it’s happening right now.”
The court did give Ohio voters a partial victory, by striking down the part of the law that requires absentee voters to “complete the address and birthdate fields on the identification envelope with technical precision.” Yet Chandra questioned why they decided to give more leeway to absentee-by-mail voters, most of whom are white, and not to provisional voters, more of whom are people of color.
“They afforded greater protections for white, suburban, absentee voters, but no protection at all for people voting with provisional ballots who make the same trivial errors,” he lamented.
The plaintiffs can now ask the full Sixth Circuit to hear the case, but with in-person absentee voting set to begin in the crucial swing state on October 12, time is running out to change the policy before this November’s presidential election. Since Ohio leads the nation in provisional ballots and its provisional voters tend to be Democrats concentrated in the state’s urban centers, the outcome of the case could decide both the presidential election and which party controls the Senate next year.