The Northeast Ohio Coalition for the Homeless and the Columbus Coalition for the Homeless, joined by the Ohio Democratic Party, filed a petition for certiorari asking the U.S. Supreme Court to hear their challenge against Ohio voter-suppression laws known as S.B. 205 and 216. The homeless coalitions and ODP are plaintiffs in a long-running voting-rights lawsuit against Ohio Secretary of State Jon Husted and Ohio Attorney General Michael DeWine.
The challenged laws require throwing out absentee and provisional ballots based on trivial, technical errors on ballot forms–even where elections boards do not otherwise question voters’ identity and eligibility. For example, Secretary Husted’s position at trial was that voters who write their names in legible cursive on ballot forms, instead of printing in roman letters, should be disenfranchised.
The Sixth Circuit Court of Appeals, which covers Ohio, is in conflict with another appeals court, the Eleventh Circuit, regarding whether private plaintiffs–as opposed to only the U.S. Department of Justice–may bring lawsuits under the “Materiality Provision” contained in 52 U.S.C. § 10101(a)(2)(B) to challenge voter-suppression laws such as S.B. 205/216. The Materiality Provision prohibits denying the right to vote “because of an error or omission” on papers related to voting such as a ballot form, “if such error or omission is not material in determining whether such individual is qualified under State law to vote….”
This protection was an early, hard-fought victory of the civil-rights movement that predated the Voting Rights Act of 1965. Congress adopted the protection in response to countless instances where state and local officials, particularly in the Jim Crow South, used trivial technicalities to disenfranchise voters. And the statute was intended to prevent just the sort chicanery in which Ohio is engaged.
For example, 87-year-old Sally Miller, who has macular degeneration, in a recent Ohio general election missed one digit of her social-security number on her absentee envelope. All the other information on her ballot was correct, and her signature on the envelope matched the signature on her ballot application. Nonetheless, her local elections board discarded her ballot, even though she had already provided the requisite information when she correctly filled in the absentee-ballot application–and even though board officials had enough information to verify her voting eligibility.
After a 12-day trial in March 2016, U.S. District Judge Algenon Marbley ruled for the plaintiffs. But that fall, a sharply divided Sixth Circuit panel overturned Judge Marbley’s decision in part. (Judge Damon Keith wrote a blistering dissent–complete with photographs of martyrs of the civil-rights movement–that received widespread public attention.)
A similarly divided full Sixth Circuit court refused to undo the damage to voting rights. (As the petition notes, Judge Alice Batchelder participated in the full court decision. She denied, without explanation, the plaintiffs’ motion for her recusal. Her husband was Speaker of the Ohio House at the time the challenged legislation was enacted, co-sponsored SB 205, voted for both SB 205 and SB 216, and, as Speaker, shepherded the statutes into law.)
The plaintiffs’ petition to the Supreme Court is from the Sixth Circuit decision.
Lead counsel for the homeless coalitions, Subodh Chandra, said, “Voters in presidential swing-state Florida–which is in the Eleventh Circuit–have more rights to defend against petty assaults on voting rights than voters in swing-states Ohio and Michigan, which are both in the Sixth Circuit. That can’t be right. The Supreme Court should affirm voters’ right to protect themselves nationwide from suppression efforts like those in which Ohio regularly engages.”
Subodh Chandra and Sandhya Gupta of The Chandra Law Firm LLC in Cleveland, along with Caroline H. Gentry and Ana P. Crawford of Porter, Wright, Morris & Arthur LLP in Dayton represent the Northeast Ohio Coalition for the Homeless and Columbus Coalition for the Homeless. They have been joined by the distinguished voting-rights scholar Professor Pamela Karlan, co-director of the Stanford Law School Supreme Court Litigation Clinic, and Supreme Court advocate Kevin K. Russell of Goldstein & Russell, P.C. in Washington, D.C., editors of the SCOTUSblog. Donald J. McTigue, J. Corey Columbo, and Derek S. Clinger of McTigue & Columbo LLC in Columbus represent the Ohio Democratic Party.
The plaintiffs’ petition for certiorari to the U.S. Supreme Court can be found here.
More background on Ohio’s assault on voting rights through these statutes, including charts showing how differently Ohio’s counties disenfranchise voters, can be found in the video here and the Cleveland Scene magazine article here.