The majority opinion from the U.S. Court of Appeals sends a strong message that the casting of ballots should go forward with Ohio’s new ID requirements in force and that any subsequent claim concerning the disqualification of an-already cast ballot can be handled after the casting of ballots is completed on November 7. The key passage of the majority opinion, in my judgment, is the assertion (at p. 19) that voters “would be irreparably harmed only if any noncomplying ballots were disposed of or destroyed and could not be later counted” and, therefore, that voters “suffer no injury from the continued enforcement of the voter identification requirements to absentee ballots pending a full resolution on the merits.” Consequently, even assuming that a violation of federal law occurs by disqualifying a ballot because of the unequal or arbitrary enforcement of Ohio’s ID law, there is no need for federal court intervention prior to the casting of ballots because afterwards “all absentee ballots can be counted without regard to the identification requirements” (ibid.)—a point made here prior to the district court’s issuance of its TRO last Thursday. This reasoning from the appeals court would appear to apply with equal, or even greater, force to conventional in-precinct ballots as to absentee ballots. Any voter who goes to the polls on November 7 and lacks sufficient ID in the eyes of the poll workers is entitled to cast a provisional ballot. Therefore, if it is ultimately determined that the ID requirement was applied wrongfully to that voter, the voter’s provisional ballot also “can be counted without regard to the identification requirements.” For this reason, if the district court were to prevent poll workers from requiring voters to present ID on November 7 (and from further requiring those voters to cast a provisional ballot if they do not), a new order of this nature would seem in direct derogation of the appellate opinion issued released today. Moreover, the majority opinion sets forth a preliminary hurdle that the plaintiffs must surmount even before they confront this apparently insuperable obstacle to their effort to block complete implementation of Ohio’s ID rules. The preliminary hurdle is known to attorneys as the issue of “standing” and, for the benefit of non-attorneys, it means that any person seeking to stop enforcement of a state law in federal court must show how that law injures that particular person (and not just some one else in society). The majority opinion said that the two groups that filed this lawsuit—an organization that helps homeless persons and a labor union—failed to satisfy this threshold inquiry because they had not shown that any of their members had cast an absentee ballot without proper identification or that they were planning to vote but lacked the kind of ID required by Ohio law. In the court’s words, the plaintiffs’ “allegations fall far short of asserting that any of plaintiffs’ members have suffered or will immediately suffer a concrete, actual injury traceable to enforcement of the voter identification requirements” (p. 17). This “standing” issue is crucial because plaintiffs are not entitled to present the merits of their challenge of the constitutionality of a state law unless they meet this threshold. It is a basic jurisdictional prerequisite to the exercise of federal judicial power, and it cannot be waived or overlooked by any federal court. Consequently, it is understandable that the concurring opinion filed by Judge McKeague admonished the plaintiffs that, at tomorrow’s hearing back in the district court, they had better introduce new evidence to show how the ID law specifically harms some of their members, or else they will be unable to pursue their constitutional claims at all. Even if they meet this threshold hurdle, however, the plaintiffs still face the obstacle described above regarding their request for an order blocking complete enforcement of Ohio’s ID laws: there is no need for an intrusive, ahead-of-time remedy when it is possible to protect any ballot from the wrongful enforcement of the ID rules after it has been cast. The majority’s opinion made plain that it was reading the U.S. Supreme Court’s decision of only ten days ago in the Arizona voter ID case, Purcell v. Gonzales, as signaling forcefully that there should be no federal-court disruption of the rules for casting ballots shortly before the time those ballots are to be cast, or especially during the period in which they are being cast in a regime of early or absentee voting, when this kind of disruption is unnecessary to vindicate the alleged voting rights interests at stake. Purcell may have called for appellate deference to district courts in the context of requests for judicial intervention into the operation of a state’s electoral process, but that deference is warranted—at least in the Sixth Circuit’s view—only when the district court itself is sufficiently respectful of the state’s valid interest in the “smooth and effective of administrative of voting laws” (p.20). Citing Purcell, the appeals court in the Ohio case summed up its decision this way: “The TRO issued by the district court needlessly creates disorder in electoral processes, without any concomitant benefit to the public” (p.20). The appeals court, however, expressed hope that the parties to the case would reach a negotiated agreement that would avoid the need for any further judicial proceedings on the constitutionality of the ID rules. On this point, even the dissenting judge was in complete agreement. The main benefit of an accord of this kind would extend beyond the remaining few days until balloting closes on November 7—after all, the appellate decision appears to leave no room for any federal-court intervention during this period (and therefore not much to negotiate over in this regard)—but rather would remove the impetus for post-balloting disputes that could arise after the polls close next Tuesday. It is quite clear that the appeals court’s decision does not preclude fighting over either absentee or provisional ballots if voters believe their ballots to have been wrongfully disqualified as a result of the ID requirement. There are a variety of such claims that conceivably could emerge after November 7, unless the parties reach an agreement that obviates the need for going to court over the counting of these ballots. Therefore, in the interest of avoiding elections being decided by judicial decree, an interest that all profess to favor, it would benefit the public if the parties could hammer out ahead of time (between now and next Tuesday) a set of clear rules for determining when ballots will—and will not—be counted despite having been cast without the state-mandated ID.

Given the Ohio AG’s professed willingness to compromise, one wonders whether it would be acceptable to both sides if the Sixth Circuit court of appeals vacated the district court’s suspension of the ID rules applicable to absentee voting, subject to the following exceptions and conditions: first, the county boards of election are required to preserve all absentee ballots ruled ineligible for counting for lack of proper ID until further notice of the district court; second, no absentee ballot may be ruled ineligible for counting on the ground that the ID provided with it is the larger number that appears in the upper right-hand corner of an Ohio driver’s license (associated with the photograph on the license) rather than the smaller number on the left underneath the words “LICENSE NO”; third, no absentee ballot may be ruled ineligible for counting for lack of proper ID if the ballot is submitted with “current utility bill” or “other government document” that conforms to the definitions of those terms contained in Secretary of State Directive 2006-78 (October 26, 2006); fourth, no absentee ballot may be ruled ineligible for counting for lack of proper ID if it was submitted in person to a county board of election, or postmarked for mailing by the U.S. Postal Service, during the time in which the district court’s orders were in effect; fifth, in all other respects, the county boards of elections are reminded of their obligation to enforce uniformly and consistently the ID rules applicable to absentee voting enacted by the General Assembly and implemented by the Directives of the Secretary of State’s Office, including those provisions that specify that a military ID must contain a current address in order to qualify (even if military IDs are not issued in this form), and that evidence showing unequal, discriminatory, or inconsistent enforcement of these ID rules may be considered in further proceedings in the district court. In thinking about this kind of compromise, however, one wonders whether it is too complicated to be implemented at this point, even if it would have been preferable had the district court initially issued a ruling along these lines. In other words, going forward, it might be better for the Sixth Circuit simply to leave in place the district court’s complete suspension of the ID rules applicable to absentee voting, even assuming the Sixth Circuit believes that complete suspension to have been improper. Although the Sixth Circuit might not wish to reward a district court for excessive intervention into the state’s electoral process, especially so close to Election Day, the appellate court nonetheless needs to consider the countervailing costs if its own decision were to change the applicable rules for this election again—and were to do so in a way that makes the rules even more complex. If the Sixth Circuit does reach this conclusion, refusing to stay or vacate the district court’s orders solely to avoid the harms associated with last minute on-again-off-again changes in the electoral rules, perhaps it will wish nonetheless to send the district court a signal to tread a bit more carefully and narrowly next time.

An initial review of the text of Judge Marbley�s orders (now available here) indicates: 1. They appear to apply to in-person early voting at board of election offices, as well as to mailed-in absentee voting, although it is not altogether explicit on this point. 2. It is clear that these orders apply, not only to the counting of absentee ballots, but to the process for collecting ID information as well: �The Boards of Election shall also include correspondence with application forms for absentee ballots and with instructions that accompany the absentee ballots reflecting that the voters need not comply with the above-enjoined provisions.� This language appears in both the TRO, at page 5, and the court�s Order to county election boards, at pages 2-3. For reasons discussed previously, this provision of the orders raises the concern that, if these orders are vacated on appeal, voters who failed to provide any ID information in the interim will be disenfranchised as a result.

By limiting the TRO to absenting voting, Judge Marbley—at least for now—has avoided problems that could have emerged with having to retrain poll workers on what ID rules to apply to in-precinct voting on November 7. Apparently, however, Judge Marbley intends still to consider the possibility of enjoining the state’s in-precinct voter ID rules at a hearing scheduled for next Wednesday. I question the feasibility of any such ruling only six days before Election Day—attempting to instruct poll workers on their obligation to enforce only the ID requirements of the Help America Vote Act (HAVA) would be a daunting task, given the complexity of even those limited requirements—and it could be expected that uncertain poll workers would err on the side of requiring voters to cast provisional ballots (as I suggested previously). But perhaps we shall learn new information over the next five days that would change one’s view of the balance of competing equities. [NEW THOUGHT (10/27, 6:10am): I now realize that a preliminary injunction issued next Wednesday, November 1, with respect to in-precinct voting on November 7 could apply, not to the collection of ID information by poll workers as required by Ohio’s new law, but rather only to the counting of provisional ballots cast by voters without the ID information sought by the poll workers. A limited judicial order of this type seems at this point to be the least intrusive form of federal-court intervention to remedy any violation of the Equal Protection Clause that might occur as a result of the differential administration of the state’s new ID law by poll workers in different counties, or different precincts within the same county. For one thing, a federal-court order applicable only to the counting of provisional ballots, because it would not attempt to regulate the conduct of the poll workers themselves, would not require the retraining of those poll workers and thus would minimize the disruptive effect it would have on polling place operations. Conversely, a federal-court order issued in advance of November 7 concerning the counting of provisional ballots has the desirable quality of being judicial intervention before these ballots are cast and without any knowledge of which candidates hold an unofficial lead on November 8 based on the initial counting of conventional (non-provisional) ballots. In other words, this kind of federal-court order would set in advance the rules for counting provisional ballots that lack ID information sought by some poll workers in violation of Equal Protection, rather than having the federal court determine those rules in the undesirable context after November 7 of knowing how many provisional ballots a candidate needs to make up a deficit among conventional ballots.] Focusing on absentee voting, it is certainly understandable if, as reported, Judge Marbley was disturbed by the directive issued earlier today from the Secretary of State’s office, which ruled that absentee ballots containing the “wrong” number taken from the voter’s driver’s license would be disqualified. Ohio driver’s licenses happens to contain two numbers, one prominently displayed above the driver’s photograph in the top right corner, the other inconspicuously sandwiched between the driver’s address and birth date. As it turns out, it is the latter number which is the official driver’s license number. The former is one that the Department of Motor Vehicles keeps for other administrative purposes. Understandably, many absentee voters have provided the former rather than latter number when prompted to submit their “driver’s license number” with their absentee ballot. By ruling that only the latter number is acceptable, the Secretary of State’s office inappropriately made the voting process a game of “gotcha” that in no way serves the state purpose of a voter identification rule. (In no way whatsoever does it aid in the prevention of voter fraud to punish a voter for copying the more prominent of two numbers contained on the voter’s driver’s license.) If Judge Marbley’s order simply requires election officials to count an absentee ballot regardless of which of these two driver’s license numbers the voter provides, it would be entirely commendable. But if Judge Marbley’s order goes further and prohibits election officials from instructing absentee voters to provide either a driver’s license number (whichever one) or the last four digits of a voter’s Social Security Number (SSN), as Ohio law newly requires this year, the order is arguably problematic. (As I have yet to see a written form of the order, my thinking here is necessarily speculative.) It is not clear what the federal-law basis for invalidating this kind of alternative-options requirement would be, especially in light of HAVA’s own similar ID rules. Moreover, given even a remote possibility that Judge Marbley’s order could be reversed on appeal, one worries about any absentee voter who does not provide the required information during the interim period in which the order is in effect, only to become disenfranchised if and when the higher court reinstates the requirement. In considering the practical effect of this new TRO (assuming, as has been reported, that its scope is to invalidate any enforcement of Ohio’s new voter ID law applicable to absentee voting that the General Assembly adopted in the past year), it is worth distinguishing between mail-in absentee voting and in-person early voting at the county boards of election offices. If a mailed-in absentee ballot already contains one of the two driver’s license numbers, or the last four digits of the voter’s SSN, then enforcement of the ID law requires nothing more than the election board’s examination of this information as a prerequisite to counting the ballot. Likewise, if a mailed-in ballot contains none of this information, then enforcement means simply disqualifying this ballot for lack of any ID. Since the absentee ballots are not to be counted until November 7, what really matters is the counting rule in effect then. Whether or not the TRO stops the boards from seeking this ID information between now and then will not have a practical effect upon mailed-in absentee ballots that already have been sent to voters. (If, however, as a result of the TRO, in the remaining few days, boards were to send out absentee ballots without an instruction to provide this ID information, and the requirement to provide this information were reinstated on appeal, the practical consequences of this TRO would indeed be significant as to those voters disenfranchised as a result. It is hard to know, at this late date, how many voters might fall into this category.) By contrast, the practical effect of the new TRO is potentially much more significant with respect to in-person early voting (assuming the TRO purports to apply to this category of “no excuse absentee” voting). If starting at noon on Friday, October 27, the TRO disables the election boards from collecting a driver’s license number or last four digits of SSN from in-person early voters, and ballots are cast without this information being collected, then these voters are potentially vulnerable to disenfranchisement if the TRO is vacated on appeal. Yet an overriding principle of the electoral process should be that no voter who complies with all instructions that the election board provides at the time of casting the ballot should be disenfranchised because a subsequent change in the operative legal rules. Somehow, our system ought to be able to hold these voters harmless, whatever else may occur concerning the legal challenges to the voter ID rules during this election. If Judge Marbley’s order governs the collecting of ID information, and not just the counting of ballots that lack ID information, it need not have done so in order to protect the right of voters to cast a countable ballot. In fact, if the order does extend to the collecting of ID information, it may have the unintended consequence of jeopardizing the ability of eligible voters to cast a countable ballot for the reasons just stated. Yet, if that bell has already rung—with this kind of order going into effect at noon on Friday—it may be too late to un-ring it. In this situation, we must rely on the appellate court to protect the rights of those who vote without providing ID as a consequence of the TRO itself.

Professor Foley provides some Free & Fair commentary on NEOCH v. Blackwell, the new Ohio voter ID case.

Let’s assume, as is being alleged, that Ohio’s new voter ID is being enforced differently in different counties within the state, or even by different officials within the same county, as is also alleged. Specifically, the allegations include: (1) different interpretations of “current” utility bill, (2) different views on whether “other government document” encompasses local as well as state or federal documents, (3) different understandings of whether driver’s licenses without current addresses are sufficient; (4) different views on whether a second number appearing on Ohio driver’s licenses qualifies for an absentee ballot; and (4) different views on whether military IDs without addresses are acceptable. Let’s assume also that each of these discrepancies would violate state law or the federal Equal Protection Clause if it differentially disenfranchised some, but not all, similarly situated citizens. In other words, suppose one citizen gets to participate in the election of Ohio’s Governor and U.S Senator because the new ID law is enforced one way when she votes, while another citizen does not get to participate in the election because the same law is enforced the opposite way in his situation (which is identical to hers—they each present the exact same type of ID—except for the particular locality or administrator who happens to act as gatekeeper to the franchise). It sounds like a Bush v. Gore problem, as my colleague Dan Tokaji, has already noted. Even assuming all this, it does not follow automatically that the federal judiciary should block enforcement of the new voter ID law before November 7, or even order the Secretary of State’s office to issue clarifying instructions to all the state’s counties. The reason is that many (perhaps most) poll workers and other elections officials have already received their training regarding the ID rules to enforce for this year’s general election and any further instructions might cause only further discrepancies in the administration of these ID rules, rather than achieving the clarifying uniformity that would be their objective. More important, it is not obvious that disparities in the administration of voter ID rules, even if they occur, will have a disenfranchising effect on those voters subject to the more burdensome enforcement of these rules. The consequence of being subjected to an excessive ID requirement is the obligation to cast a provisional ballot. To be sure, a voter who is forced to cast a provisional ballot who shouldn’t have been required to do so is subject to the unfortunate burden of having to supply additional ID afterwards in order to make sure that the ballot gets counted. But if voters in this situation take this extra step, they won’t be disenfranchised despite the imposition of the differentially extra ID obligation. Even more significant, should it turn out that some provisional voters are unable to supply the extra ID after casting their provisional ballots, it is not inevitable that their provisional ballots will not be counted. As long as those provisional ballots are cast and preserved, then post-election litigation over the differential enforcement of the ID requirement can result in the counting of the provisional ballots if it is adjudicated that their votes were subjected to improperly excessive ID requirements. While, like others, I am no fan of post-election litigation over whether particular provisional ballots should be counted, in this particular circumstances I tentatively suggest that this form of litigation might be preferable to a pre-election injunction that attempts to change the ID rules that local officials and poll workers enforce. The real risk here is that such a pre-election order will only increase the number of provisional ballots to fight over after November 7. The claim is also made that the current differential enforcement of the ID law has a particularly severe disenfranchising effect on absentee voters, who do not have the opportunity to cast a provisional ballot or to supplement their ID submission if what they initially provide is deemed insufficient. The argument here seems to be that these absentee voters have lost their one and only opportunity to cast a countable ballot if they are subjected to a wrongfully excessive ID requirement. But this argument seems incorrect—or at least not obviously true. Absentee ballots, like provisional ballots, record the vote preferences of those who cast them. As long as they are preserved, their eligibility for counting can be considered, and litigated, after November 7. Any absentee ballots that were initially set aside as uncountable for failure to supply adequate ID can subsequently be moved to the countable pile if a court later determines that the way in which the ID law was applied to those absentee ballots was unlawful or unconstitutional. Again, I don’t like the idea of losing candidates attempting to search the pile of disqualified absentee ballots in the hope of finding enough to change the outcome of the election. Nor do I like the idea of courts ruling on such efforts in the post-election environment, given the inevitable suspicion that judges cannot avoid their own partisan preferences in these situations. Nonetheless, we are already in the midst of the absentee/early voting process in Ohio, and thus any judicial order before November 7 concerning the enforcement of the ID law with respect to absentee voting will inevitably have an unequal effect: inapplicable to those absentee ballots cast before the order, applicable to those cast afterwards. This kind of inequality caused by the timing of election-related judicial relief is also reminiscent of Bush v. Gore. Thus, perhaps the most important form of judicial relief that could issue before November 7 is an order reminding state and local officials of their legal obligation to preserve all ballots, including absentee and provisional ballots that are initially ruled ineligible for counting because of some registration or ID deficiency. The above remarks are more tentative than I would wish them to be. But Purcell v. Gonzales and the commentary surrounding it has caused me, like others, to rethink the relationship of pre-election and post-election judicial intervention. As I examine the details of the allegations concerning differential enforcement of Ohio’s new ID law, which were brought before a federal court only yesterday, I am not at all sure that judicial intervention over the next thirteen days is preferable to judicial intervention afterwards—except to emphasis the need to let all voters, whether absentee or in-person, record their preferences on a ballot that can be evaluated for eligibility subsequently. Perhaps, however, how the federal judiciary handles this pre-election litigation over the next several days will force me, and others, to rethink these matters even further.

The threat of a lawsuit in Washington State invites inquiry whether pre-election or post-election litigation would be preferable.

As in 2004, the question has arisen whether an otherwise eligible voter will be disqualified because a third-party group delivered the voter’s registration form after the deadline. According to a report from Washington State, approximately 1100 registration forms have been rejected because Project Vote used UPS, rather than the regular postal service, to deliver the forms to the King County elections board in Seattle. Had they been postmarked by U.S. Mail by the deadline, they would have been accepted. But UPS did not postmark the package, and although the forms were given to UPS before the deadline according to UPS records, they were not submitted to the election board until after the deadline passed. Project Vote has threatened to sue if these forms are not added to the list of registered voters qualified to cast a countable ballot in the November 7 election. This lawsuit could take one of two forms: a pre-election suit during the next two weeks seeking an injunction that would add these names to list, or a post-election suit demanding that provisional ballots cast by these voters be included in the certified count that ultimately determines the outcome of this year’s elections. As we saw in 2004, a dispute over the eligibility of 1100 provisional ballots could well leave the results of a close election in limbo for months: the Washington’s gubernatorial election was certified on December 30, 2004, with a 129-vote margin for the Democratic candidate, switching the result from the outcome from the initial count and first recount, because of the inclusion of 735 previously uncounted provisional and absentee ballots. Further litigation over disputed provisional ballots did not end until June 6, 2005, over five months later. A quick pre-election judicial resolution over the eligibility of these voters, which (if they were disqualified) would be binding on any subsequent litigation over provisional ballots cast by these voters, might be preferable to protracted post-election litigation over the validity of their provisional ballots. Any such post-election litigation, in addition to delaying the final determination of winners in close races, would be conducted in the unfortunate context of knowing how many new ballots would be necessary to alter the outcome of these races. These problems associated with post-election litigation have caused several scholars, including me previously, to prefer pre-election litigation that clarifies voter eligibility rules before ballots are cast. Yet this preference for pre-election litigation is now subject to some revisiting, or at least refinement, in light of the U.S. Supreme Court’s decision on Friday in Purcell v. Gonzales. This particular dispute over the 1100 late registration forms provide a good concrete context for weighing the pros and cons of litigation before and after Election Day. As others have suggested in email exchanges discussing the Supreme Court decision over the weekend, how this balance comes out may depend on the specific circumstances at issue. In some situations, pre-election litigation may impose less severe costs overall on the electoral system. In other circumstances, the opposite may hold true. One point, however, seems clear: it would be beneficial for election law scholars to undertake more systematic study of the relationship of pre-election and post-election litigation and their effects on the process of casting and counting ballots.

New Jersey may be the state to watch most closely.

As the New York Times reported on Sunday, there is a national trend towards increased use of “no excuse” absentee voting. While this trend clearly affects the politics of campaigning, will it also affect the vote casting-and-counting process in such a way as to invite post-voting litigation when the apparent margin of victory is exceedingly narrow? This issue has been considered before, but it is worth examining in the context of those Senate races that are currently considered the tightest. According to an extremely valuable chart prepared by electionline.org, these “swing” states (in terms of controlling the Senate) have no-excuse absentee voting: Maryland, Montana, New Jersey, and Ohio. By contrast, these other swing states still require an excuse for casting an absentee ballot: Michigan, Missouri, Rhode Island, Pennsylvania, Tennessee, Virginia. Tennessee, while requiring an excuse for casting a mailed-in absentee ballot, permits early voting at the county election commission’s office without an excuse; but in-person early voting does not raise the same risk of post-election litigation that mailed-in absentee ballots do. If New Jersey is the tightest race where no-excuse absentee voting is permitted, as various reports over the weekend suggest, it may become the state to watch most closely to see if an increase in mailed-in absentee ballots, as a percentage of total ballots cast, invites post-voting disputes alleging improprieties in the handling of these absentee ballots. New Jersey adopted no-excuse absentee voting only last year. Thus, this election may prompt allegations that some absentee voters were improperly influenced, or other absentee ballots were tampered before being returned for counting. Whether or not these allegations are well-founded, they may cause the result of the Senate race to remain uncertain during the initial hours or days after the polls close on November 7. This Star-Ledger story from this morning contains further information on New Jersey’s new no-fault absentee voting law, including a discussion of problems that surfaced in a local primary election. A state judge invalidate 31 absentee ballots on the ground that supporters for one candidate gave excessive help to voters in filling out these absentee ballots. The case is on appeal, but as the story suggests it may be an indication of the kind of challenges that could surface if the result of the state’s Senate race is close enough to be worry fighting over.