Last fall, five days before the presidential election, I was returning from court, having just appeared on a voting rights case. A colleague from our national office in Washington, D.C., was on the phone reporting a problem with voting procedures in Ohio. The Ohio Secretary of State, Kenneth Blackwell, had taken the position that an almost unlimited number of partisan “challengers” would be allowed to enter and question the eligibility of voters waiting to vote. The chilling effect of this practice, particularly on new or transient voters, was obvious. My colleague made it clear that, unless immediate action was taken, the policy would remain unchallenged.
Within hours, the Thurgood Marshall Fellow for the Lawyers’ Committee for Civil Rights, Chhaya Malik, and I were on a plane to Cleveland. Arriving early the following morning, we assembled the pleadings that had been prepared overnight by our pro bono co-counsel team, led by Bill Kissinger at Bingham McCutchen. We filed the complaint and request for a temporary restraining order later that afternoon. The judge scheduled an emergency hearing for the following afternoon, Saturday.
Our arguments were based strictly on the state election code and revolved around Blackwell’s clever manipulation of plain language definitions of “precinct” and “polling place,” an obvious attempt to enhance the number of challengers at each site. These challengers would be allowed to interrupt the voting process of any person without any reasonable basis by which to contest the voter’s eligibility. After almost six hours, Judge O’Donnell of the Cuyahoga County Common Pleas Court agreed with our arguments and issued a permanent injunction barring all but a handful of challengers from the polling sites.
We waited all day Sunday for an appeal that was never filed. Early Monday, we learned that Republican Party supporters, instead of appealing the injunction in our case, had filed an original writ in the Ohio Supreme Court. Since we had no notice of the filing, by the time we learned of the ploy, it was too late to intervene. Indeed, as the dissent pointed out, “the court should not so readily grant extraordinary relief when the plaintiffs in the Cuyahoga County litigation are not named parties and are effectively barred from opposing the emergency relief.” Nevertheless, a majority of the supreme court ruled that the case was properly filed and that Judge O’Donnell had misconstrued the state election laws. It reinstated Blackwell’s policy of allowing virtually unlimited partisan challen-gers to be present at polling sites.
Despite this ruling, the challengers never materialized on Election Day. We later learned that the confusion created by our weekend injunction had interrupted the challengers’ planning. They never recovered.
By the time the Ohio Supreme Court had ruled, another pernicious voting policy was in our sights. On Monday afternoon, we learned that Blackwell had adopted a remarkably punitive policy in patent violation of the Help America Vote Act (HAVA): he was refusing to allow a provisional ballot to be cast by any voter who had earlier requested an absentee ballot, even if the voter had never received the absentee ballot because the secretary’s office had sent it to the wrong address. (See the accompanying article by Jonah H Goldman for more about the purpose of provisional ballots.)
Seeking to avoid needless litigation, I immediately called Blackwell’s office, expecting to learn that we were mistaken about the policy. Much to my surprise, however, not only did an official confirm the illegal policy, he chastised me for failing to understand that, without it, rampant voter fraud would ensue. (Is it really that difficult for an elections office to determine whether a voter is casting two ballots?) These fears of fraud, as historically has been the case, proved to be unfounded. It became painfully evident that Blackwell’s office, under the guise of protecting against voter fraud, was much more intent on suppressing voters than ensuring full and fair access to the ballot box.
Federal Judge David A. Katz, of the Northern District of Ohio, needed only a few minutes to determine that this policy was barred by HAVA. At 3:00 P.M. on Election Day, Judge Katz issued a temporary restraining order allowing voters who had requested, but not cast, absentee ballots to vote by provisional ballot. White v. Blackwell, Case No. 3:04 CV 7689 (N.D. Ohio 2004). Given the urgency of the matter, Judge Katz ordered Secretary Blackwell to inform, within thirty minutes, all Boards of Election in the state to implement the restraining order. In clear defiance of this order, Blackwell did not issue his directive until one hour and twenty minutes after being ordered to do so.
But Blackwell had not exhausted his efforts to suppress the vote. Although ordered by a federal court to allow these provisional ballots to be cast, he then argued that he would not allow the ballots to be counted. Blackwell adopted the incredible posture that once an absentee ballot was mailed by the elections office, regardless of whether it was actually received, the voter was considered to have already voted and thus would be barred from actually casting a ballot at the polls. We made clear to him that we would not idly stand by while he abused his statuory duties through such Orwellian interpretations. A few days later, while votes were still being counted, Blackwell, under threat of further injunctive relief from the federal court, was forced to issue another directive informing election officials that these properly cast provisional ballots must be counted.
The right to vote is often thought to be our most cherished constitutional protection, as all other constitutional rights are derivative of it. Thus, the degree to which Ohio elections officials were willing to pursue explicit efforts to chill this right was most disconcerting. The unfounded obsession with fraud was dishonest and so clouded their judgment that policies were adopted in clear violation of the law.
But we take solace where we can find it: our democracy functioned, albeit imperfectly. The Congress enacted a voter’s protection law, the executive branch refused to properly implement it, and the judiciary intervened to enjoin the secretary of state to enforce the law in a fair manner, as Congress intended. Yet so much energy had been expended attempting to justify unlawful restrictions on the right to vote; these efforts could have been employed to enhance access to the polls. And if Blackwell had not been the state co-chair of the Bush–Cheney ’04 Committee, these priorities would have been weighed differently.
So, if we are to avoid the Florida experience of 2000 or the Ohio experience of 2004, we must reform state election laws to bar such partisanship from infecting the fair application of the law. While not inconceivable, attaining that goal still sounds idealistic—if not naïve. Thus, with the able assistance of colleagues such as those at Bingham McCutchen, we must stand ready to use the courts to ensure that partisanship or sheer arbitrariness does not corrupt the states’ responsibility to guarantee unfettered access to the voting process.