Today’s fights over laws like early voting trace back to 2004 in Ohio, when most of the longest lines at the polls were in urban areas like Cleveland and Columbus, which tend to have robust minority populations and are heavily Democratic. At the time, Democrats accused then-Secretary of State Kenneth Blackwell, a black Republican, of suppressing the vote after he ruled that so-called provisional ballots would count only if voters cast them in the correct precinct, a decision later upheld by a court. (Poll workers provide these provisional ballots to voters whose eligibility is in doubt, and officials count them only if they can later verify that the voter was indeed eligible. But while federal law requires states to offer provisional ballots, states have some discretion in setting the conditions under which they’re counted.) In addition, a lawsuit brought by the League of Women Voters in 2005 alleged that a shortage of voting machines in certain areas disenfranchised tens of thousands of Ohioans. “It put the black community on notice,” Minor said of the election.
Under a national microscope, the state legislature in 2005 approved early voting during a period of 35 days, including one week when people could register and vote at the same time, and opened absentee voting to anyone who requested a ballot. Those two measures became extremely popular — 1.8 million Ohioans voted early or by mail in 2012, casting about a third of all ballots — and are considered the primary reason long lines have not returned. In 2009, the state settled the League of Women Voters lawsuit and agreed to institute a series of reforms, including requiring counties to produce pre-election planning documents and to allocate voting machines based on the number of registered voters (poor machine allocation was a key driver of Franklin County’s five-hour waits).
But rather than settling the issue, these measures kicked off an intense back-and-forth battle over the laws that shows no signs of ending. In 2011, the Republican-led Legislature began trying to roll back many of these reforms by passing a sweeping elections law that would have cut early voting in half. Voting rights advocates responded with a campaign to repeal the bill through a referendum. When it looked like they might succeed, lawmakers decided to beat them to it by passing a bill in 2012 that itself repealed the law.
Since then, however, the Legislature has continued to pass smaller-bore adjustments. In 2014, lawmakers eliminated one week of early voting during which people could register and vote at the same time, bringing the period down to 28 days. The same month, Secretary of State Husted (Blackwell, who did not respond to an interview request, left office in 2007 after a failed bid for governor) set uniform statewide hours for voting during the shorter period, barring county election boards from opening during some weekends and evenings. Previously, counties could set their own hours for early voting during the 35-day window, and larger counties like Franklin and Cuyahoga, which includes Cleveland, stayed open during these extended hours.
The NAACP filed suit in May 2014, and just this past April reached a settlement with the state that reinstates some of the weekend and evening hours but maintains the 28-day period, without the week allowing people to register and vote on the same day. Several other bills have tweaked rules on absentee and provisional ballots — shortening the period voters have to correct them, for example, and requiring they provide their address, date of birth and driver’s license number or partial social security number on the ballot envelopes. Advocates say these changes increase the likelihood of technical errors that can lead to ballots being rejected.
Voting rights proponents see early in-person voting as critically important to black voters, many of whom work multiple, inflexible jobs and live in single-parent homes, all of which makes it more difficult to wait in lines during business hours on Election Day. A broad body of evidence suggests that blacks are more likely than whites to vote early, both in Ohio and nationally. One study at Cleveland State University found that, in 2008, African-Americans comprised about 56 percent of early voters in Cuyahoga County, but just 26 percent of all other types of voters (one of the authors is also a member of a local voting rights advocacy group). A 2014 study by the liberal Center for American Progress also suggests that blacks may be more likely to cast provisional ballots in Ohio and 15 other states. All of this has made arguments about early voting and tinkering with provisional ballot rules not simply partisan, but racially charged as well.
Joshua Eck, a spokesman for Secretary of State Husted, declined the Center’s request to interview the secretary. But Husted has defended the changes publicly, saying they have brought uniformity to the state’s voting rules and have actually expanded access in counties that previously offered no after-hours voting. “You can vote for a month, you don’t have to leave your house,” Eck said. “Ohio is still leaps and bounds above most states.”
Some 33 states plus Washington, D.C., offer early voting periods, and Ohio’s is indeed longer than most, according to the National Conference of State Legislatures. But officials in more populous counties say the rules have tied their hands and have the effect of reducing access for the people who most need it.
“The problem we have is that when they try to stick uniformity into the formula, they tend to restrict things,” said Pat McDonald, elections director for Cuyahoga County and a Republican. “Don’t take it away from us; give it to the other counties. Make it more accessible. Make it easier for the voters.”
State Sen. Bill Seitz, a Republican who has sponsored or co-sponsored many of the election bills, said the state overreacted after 2004, “and we’ve been trying to ratchet that back ever since.” He said the changes to provisional ballots were necessary to help protect against potential fraud, and that a shorter early voting period and limits on absentee mailings are common sense constraints on spending that bring Ohio more in line with other states. “These things are not free.”
The same debates have played out across the country. Since 2010, 21 states have passed laws that the Brennan Center qualifies as “restrictive,” such as cuts to early voting or strict voter ID laws, which generally require voters to present any of a list of approved photo IDs, such as a driver’s license or passport (Ohio requires voters to present identification, but allows for a broad range of documents, including utility bills). In 2013, the Supreme Court struck down a provision of the Voting Rights Act that required some states with a history of racial discrimination, including North Carolina and Texas, to obtain approval from the Justice Department for changes to election law.
Within hours of that court decision, Texas’ then-Attorney General Greg Abbott, who is now governor, moved to instate a voter identification law that the Justice Department had blocked the previous year (many studies have shown that minorities are less likely to have driver’s licenses or other identification that Texas and some other states require at the polls, according to a review by the Government Accountability Office). Weeks later, North Carolina approved sweeping changes to its voting laws that included voter ID, limits to early voting and ending same-day registration and voting.
In June, North Carolina loosened its voter identification law to allow people to cast provisional ballots if they fail to show a photo ID but claim they were unable to obtain one due to any of a set list of reasons. But the rest of law is subject to a legal challenge, with a federal judge currently considering the case. In August, a federal appellate panel ruled that Texas’s ID law has discriminatory effect, and ordered a lower court to try to adjust the law.
Conservative groups have claimed that many of these changes help protect against voter fraud, and that there’s no evidence they suppress voter turnout. But the primary type of fraud that would be prevented by an ID law — voter impersonation — is extremely rare, even according to a list of cases collected by the conservative Heritage Foundation, which supports ID laws. The lack evidence has prompted Democrats and voting rights advocates to allege that the true intent of the laws is to suppress the minority vote (there have been more documented cases of absentee ballot fraud).
The rules covering provisional ballots remain particularly confounding. In theory, the ballots provide people who might have been turned away at the polls an opportunity to vote. But, as a 2009 report commissioned by Ohio’s then-Secretary of State Jennifer Brunner, a Democrat, put it, they can also serve as a “trap door to disenfranchisement” because in many cases, those ballots are not ultimately counted.
Ohio had one of the highest rates of provisional votes cast in the last presidential election, when they comprised 3.7 percent of all ballots, and also one of the highest rates of rejected provisional ballots, according to the Pew Charitable Trusts. While most were rejected because the voter wasn’t registered, officials tossed more than 9,000 because the voter cast the ballot at the wrong polling location, and nearly 3,000 because the voter failed to sign or print their name on the ballot envelope. The 2009 report commissioned by Brunner recommended the state simplify the rules for provisional ballots, but little progress has been made.
Unfortunately, Rev. Minor said, all of this back and forth undermines people’s trust and confuses voters, driving down turnout and making it more difficult to cast a ballot. "There's a huge distrust and sense of disdain that most people have for the electoral process,” he said. “Our challenge is convincing the public, convincing especially young African-Americans, that voting can be a tool toward justice. And I'm not so sure if they believe that.”
Ohio’s laws may yet change again before the next presidential election. Just weeks after the settlement that established the 28-day early voting compromise in April, a group represented by the general counsel of Hillary Clinton’s campaign filed a federal lawsuit challenging a broad slate of the state’s measures (more recently, that group has sought to withdraw and be replaced by the state Democratic party). In early August, in a separate matter, the Ohio Democratic Party and two groups representing the homeless filed an updated complaint arguing that the 2014 laws on absentee and provisional ballot rules discriminate against minority voters — the latest step in a years-old federal suit that, in 2010, resulted in a consent decree that has helped determine how the state counts provisional ballots.
The Clinton attorney has also filed suit in Wisconsin and Virginia, meaning that in several swing states, voting rules may not be settled until soon before the election. Rulings in any of those cases, or in North Carolina or other states, could also prompt a new wave of states trying to change their own laws, said Hasen, the election law expert.
“What you’re going to see is continued litigation, continued experimentation with the kinds of changes that we’ve seen in some places like North Carolina,” Hasen said. The chief cause, he said, is simple: Both parties have determined that making it easier to vote benefits Democrats.
Even if the Clinton lawyer’s case in Ohio is dismissed or unsuccessful, the state’s early voting laws may change again soon anyway. The April settlement on early voting expires after 2018.
The same uncertainty hangs over what types of machines voters will use in 2016 and beyond, said Norden, of the Brennan Center. There’s a “stalemate now between different branches and levels of government as to who’s responsible for paying for this,” he said.