Pre-Election Legal Activity in Ohio
General Election - November 2, 2004

Details of the election process in Ohio were being debated just days before November 2 and even on November 2 itself.   An underlying source of controversy was the fact that Secretary of State J. Kenneth Blackwell, who oversaw the election, also happened to be a co-chair of Bush's re-election campaign.  Regardless of the fairness and soundness of his decisions this created at least the perception of a problem.  Among the specific issues litigated and debated before the election were provisional ballots, challengers in polling places, voting systems, and voting rights of ex-felons.  Professor Edward B. Foley, Director of Election Law @ Moritz, a project of the Moritz College of Law at The Ohio State University, observes that it is fortunate that such issues were hashed out before the election rather than after. 

Ohio State University Moritz College of Law - Election Law @ Moritz
University of Pittsburgh School of Law - Jurist: Ohio.

In October 2002 the ACLU of Ohio sued the state in the U.S. District Court for the Northern District of Ohio charging that the punch card systems in use in much of the state violate voters' rights and seeking to have them removed before the November election.  The case went to trial in July 2004 but was then put on hold until November. 

On August 3, 2004 the Prison Reform Advocacy Center issued a report "THE DISENFRANCHISEMENT OF THE RE-ENFRANCHISED: How Confusion Over Felon Voter Eligibility in Ohio Keeps   Qualified Ex-Offender Voters From the Polls."  On August 17 PRAC filed a class action suit on behalf of C.U.R.E.-Ohio and The Racial Fairness Project against Secretary of State Kenneth Blackwell and 21 county boards of elections.  On September 13 Ohio Department of Rehabilitation and Correction agreed to notify parolees of their voting rights.

A group called Citizens' Alliance for Secure Elections (C.A.S.E.) issued warnings about the "dangerous shortcomings" of electronic voting machines and about "serious failings in Ohio's election process which could disenfranchise massive numbers of Ohioans." 

Ohio voter Aaron Greenspan (web page) pointed out a confusing ballot design in Cuyahoga County, Ohio's largest county.  The county still uses the punch card system; Greenspan showed in his case, as an absentee voter, that the numbers on the ballot and numbers on the punch card do not line up.

Secretary of State Ken Blackwell, a Republican who is co-chair of the Bush-Cheney campaign in Ohio, came under criticism for several of his decisions about election procedures. 

(A). On Sept. 7, 2004 Blackwell issued a directive requiring that voter registration cards be printed on 80 pound stock paper.  The Democratic-leaning 527 group America Coming Together charged on Sept. 28 that Blackwell was "trying to bar thousands of newly registered voters from the polls."  Blackwell relented on this point. 

(B). On Sept. 27, 2004 the Sandusky County Democratic Party, the Ohio Democratic Party and several labor organizations filed suit against Blackwell in U.S. District Court in Toledo challenging his directive to county boards of elections mandating that pollworkers only issue provisional ballots to voters who are residents of the particular precinct.  "Ohio Secretary of State Directive 2004-33 (“Directive 2004-33”) eviscerates the federal provisional-voting rights guaranteed by HAVA," the suit stated.  The Ohio League of Women Voters and other plaintiffs filed a similar suit on Oct. 4.  On Oct. 14 the judge ordered Blackwell to issue a new directive; Blackwell appealed, and on Oct. 26 the U.S. Court of Appeals for the Sixth Circuit supported his position.  (Sandusky Democratic Party v. Blackwell) This decision did not entirely settle the questions related to provisional ballots, however, and several lawsuits concerning provisional ballots were filed on Election Day.

(C). Blackwell on Oct. 20 issued a directive calling for a strict interpretation of the statute which would have excluded reporters and photographers from polling places.  "No person, not an election official, employee, witness, challenger, or police officer, shall be allowed to enter the polling place during the election, except for the purpose of voting." [Ohio Revised Code 3501.35]  On Nov. 2 the Sixth Circuit Court of Appeals overturned a lower court decision, finding that Blackwell "applied the statute overly broadly in such a way that the statute would be violative of the First Amendment." (Beacon Journal v. Blackwell)

The large number of new registrants prompted the Ohio Republican Party to take steps to guard against fraud.  (Ohio Republican Party).  On Oct. 22 the party formally challenged about 35,000 voter registrations in 65 counties (the number of those being challenged was subsequently reduced to about 23,000).  This went to the courts, and on Nov. 1 U.S. District Judge Dickinson Debevoise of New Jersey issued an order barring Republicans from using the list for Election Day challenges.  (Democratic National Committee v. Republican National Committee).

Historically, in Ohio on Election Day, the parties have been allowed to place challengers in polling places; these people can raise questions about an individual's eligibility to voter.  In one case Marian Spencer, an African American from the Avondale section of Cincinnati, charged the practice was discriminatory.  At one point Blackwell indicated he would seek to exclude all challengers for this election (statement).  On  Nov. 1 U.S. District Judge Susan J. Dlott issued an order preventing the parties from placing challengers in polling places, but on Nov. 2, in a 2-1 decision, the Sixth Circuit Court of Appeals ruled challengers would be permitted.  (Spencer v. Blackwell)

On Election Day itself long lines became an issue.  Late on Tuesday afternoon the Ohio Democratic Party filed suit against Blackwell and the Franklin and Knox County Boards of Elections in U.S. District Court.  "Voting in Franklin and Knox Counties is grinding to a halt," the suit stated.  "Because of a failure to supply an adequate number of voting machines, thousands of Ohio voters may be disenfranchised if this Court does not take immediate action..." it continued, terming the situation "dire."  Observers later suggested that there was a pattern and  that voting machines were distributed more generously to precincts favoring Bush.

Copyright © 2004, 2005  Eric M. Appleman/Democracy in Action.