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Attorney Cliff Arnebeck: Ohio Republicans "Not Giving Up Jim Crow Strategy"

Senate Bill 380, What The Ohio GOP Calls "Election Reform," Passes Ohio Lame-Duck General Assembly Along Partisan Lines

Diverse Group of Ohio Bloggers, State Media, and Election Integrity Activists Urge Gov. Strickland To Veto

VR Issues Call to Action For Ohio Residents And EI Activists Nation-Wide: Urge Gov. Strickland to Veto SB 380


UPDATED Dec. 19: According to the Columbus Dispatch and the Cleveland Plain Dealer, Gov. Strickland has indicated he will veto SB 380. Thus, VR's call to action on this matter -- contacting the governor's office and urging him to veto the bill -- is now a suggestion that you contact the governor and thank him for vetoing SB 380. Contact information is below. Thanks for all you do.

This week, in a lame duck session of the 127th Ohio General Assembly, Senate Bill 380, a so-called "election reform" bill, passed along partisan lines. With the Republican dominance over the Ohio legislature in its final days, the party that we believe is conducting a "War on Democracy" is trying to make it harder for Buckeye State residents to vote.

Regardless of the overheated rhetoric about almost completely non-existent "voter fraud" -- see this post for information on a study by the League of Women Voters of Ohio which found only four fraudulent ballots in Ohio out of over nine million votes cast in two elections -- and the GOP's insistence that registration fraud is equivalent to voter fraud (memo to the GOP: the two are not the same thing), this bill's sole purpose is to suppress voters. Among other problems, the bill would make it more difficult for absentee voters to vote, and it would lead to more rejections of absentee ballots for non-substantive reasons like minor variations between the information on a voter's registration form and the information in the Ohio Board of Motor Vehicles database.

Ohio Attorney Cliff Arnebeck, currently litigating the groundbreaking lawsuit regarding alleged manipulation of the 2004 presidential election in Ohio (King Lincoln v. Blackwell, summarized on the Strike Force blog here and detailed on Velvet Revolution's dedicated website, RoveCybergate.com), offered testimony in opposition to the bill, as did Ohio's Secretary of State Jennifer Brunner.

In an interview with VR, Arnebeck said, "The bill passed the House over the eloquent opposition of Democrat Dan Stewart, ranking member on the elections committee, again on partisan lines."

Arnebeck continued: "The Ohio Republican Party is not giving up its Jim Crow strategy of suppressing black voters and college voters. This is in spite of their new Republican chairman's statement that the Republican Party has lost a generation of voters."

Editorials in the Columbus Dispatch, the Akron Beacon Journal, the Toledo Blade, and bloggers at the Buckeye State Blog (who called SB 380 the "Disenfranchise College Kids Because They Vote for D's Act") and Progress Ohio, among others, joined Ohio election officials in stating their opposition to the bill.

But the GOP pushed it through anyway. Because making it easier for voters to actually, you know, vote is never a good thing to Republicans unless they're certain those voters will vote Republican.

Now that the bill has passed the General Assembly, the calls to kill the bill have turned to calls for Governor Ted Strickland to veto it. Added to those voices is a letter (reproduced in full below) from a diverse group of national and Ohio reform advocates, including Common Cause Ohio, the Fair Elections Legal Network, the Citizens' Alliance for Secure Elections, the Secretary of State's Voting Rights Institute (VRI) Advisory Council, the Lawyers' Committee for Civil Rights Under Law, People for the American Way, and the NAACP National Voter Fund calling for the bill to be vetoed.

As of yet, there's been no sign from Strickland's office as to what he'll do with this badly flawed and disenfranchising bill.

We urge all residents of Ohio, Election Integrity activists and organizations, and other interested groups and individuals to contact Ohio Governor Strickland and respectfully urge him to veto SB 380. Contact information can be found on this page, and an email form is here.

Following are excerpts from Mr. Arnebeck's and Sec. of State Brunner's testimony in opposition to this bill.

From Cliff Arnebeck [pdf, one page]:

I share with the sponsor of this bill a concern about election fraud in the state of Ohio and a sense of urgency in regard to addressing such fraud. However, I differ with the sponsor in regard to the kind of election fraud we face and how we should address it. Therefore, I urge you not to recommend this bill for passage by the Ohio House of Representatives.


[snip]

Contrary to the unfounded concerns over fraud by voters addressed in SB 380, the real problem of fraud in our elections, that has been well documented from 2000 through 2006, needs to be addressed. The evidence has a national scope, and therefore will require the cooperation of public officials, particularly our law enforcement officers -- federal, state and local -- and citizens around the country to confront it.

Because Ohio was at the center of both the state prong of the concerted attack upon judicial integrity and constitutional government in 2000, and the federal prong in the 2004 Ohio stolen election, our state is well positioned to lead in providing the public interest response. Failing to respond to this real threat is not a prudent option for many reasons. If we fail to hold these perpetrators of election fraud accountable, they will: 1) obstruct our restoration of the rule of law, 2) continue to plot new election frauds and 3) under the cloak of civility, have a better chance of succeeding again.


From Ohio Secretary of State Jennifer Brunner [pdf, 3 pages]

SB 380 is a bill that does more than make mere corrections or tweaks. It makes sweeping changes to very complex issues, and addresses these multi-layered issues in a piecemeal way. It is clear from the comments of the bipartisan participants at the Ohio Elections Summit and the volume of opposition and interested party testimony on this bill thus far, that these purported legislative tweaks are highly controversial and, in their current and anticipated forms, will result in more litigation that will cost Ohio taxpayers money.


[snip]

... SB 380 is premature and problematic. Senate Bill 380 attempts to direct the Secretary of State to operate the Statewide Voter Registration Database in a way the database was not designed to perform. Unfortunately, this bill includes overly-broad and simplified language that could be construed as violating federal law.

[snip]

SB 380 would make significant changes to how absentee ballot identification envelopes are handled. These changes will lead to a significant increase in the number of absentee ballot requests and absentee ballots cast that are rejected for purely technical reasons. Furthermore, these changes will not enhance efforts to prevent voter fraud. Boards of Elections already have the tools they need to determine the eligibility of ballot requests and ballots cast.

SB 380 changes the form for the absentee ballot ID envelope from substantial compliance to mandatory compliance. The bill also mandates complete compliance with the form on the part of the voter. Under this change, a voter must provide all the information on the envelope and that information must be an identical match with board of elections records. As a result, there is a strong probability of many more absentee ballots being rejected for technical, rather than substantive, reasons.

[snip]

Currently, observers are allowed during early voting and on Election Day. The Ohio Supreme Court has ruled that observers must be allowed anytime and anywhere in-person voting is taking place.

One provision in SB 380 redefines "during the casting of ballots" to include any time a person "votes" an absentee voter's ballot in-person. Article XVII, ยง1 of the Ohio Constitution defines the dates on which elections shall be held. Absentee ballots are not "cast" until they are "counted", and no ballot is counted until Election Day. SB 380 redefines when the casting of ballots occurs and thereby, redefines when the election takes place. SB 380's redefinition of the timing of elections is likely an unconstitutional provision that will lead to costly litigation.

The proposed changes in SB 380 are not minor corrections of purportedly ambiguous laws. SB 380's provisions impact a great many other issues and sections of Ohio's elections laws. The bill has the potential to negatively impact the entire elections process.

As the chief election officer of the state, the concerns raised in SB 380 weigh heavy in light of our successful elections cycle. I respectfully request that any election legislation be introduced after careful thought and deliberations so that we may offer comprehensive, bipartisan solutions to any issues that we may find.


And the letter from many and varied reform advocates to Governor Strickland:

December 15, 2008


The Honorable Ted Strickland
Governor of the State of Ohio
Riffe Center, 30th Floor
77 South High Street
Columbus, OH 43215-6108

RE: Senate Bill No. 380

Dear Governor Strickland:

On behalf of Ohio and national researchers and advocates who are concerned to achieve fair and proficient election administration, we ask you to veto Senate Bill No. 380 ("S.B. 380"), which passed the House on December 16, 2008.

The haste with which this bill was introduced and passed through the Ohio legislature, including last-minute amendments, has allowed almost no time to consider the bill's impact on Ohio voters and its potential conflicts with Ohio and federal election law. In addition, there has been almost no time to analyze the 2008 election results in order to better understand both the extent and origins of the problems purportedly addressed in this legislation.

Absentee Voting

H.B. 380 seeks to limit opportunities for Ohio voters to participate in absentee voting by reducing the number of days that voters have to cast absentee ballots from 35 days to 28 days before an election and in some instances, to 20 days or fewer. These varying windows may be confusing to voters and also arguably conflict with governing federal law. More careful deliberation and legal assessment is warranted.

Additionally, this rule change effectively eliminates the overlap voter registration period, during which individuals register to vote and cast in-person absentee ballots, simultaneously. This overlap period permitted many voters, including college students whose addresses change frequently due to no fault of their own, the opportunity to vote without complication. Absent an adequate opportunity for review, we are concerned that this hastily passed law will disenfranchise significant numbers of Ohio voters.

Observers

The legislation also would prohibit polling place observers from any interaction with the election officials and/or the voters. Given that the observers often provided a safety net for Ohio election administration, more careful consideration is essential.

Barriers to Voter Registration

In addition, S.B. 380 would require local Boards of Elections to notify voter applicants whose personal information cannot be verified with the Bureau of Motor Vehicles databases and require them to correct or verify the information. This places the burden of proof on the voter despite the fact that there has been no investigation to date of why so many registrations differ from the BMV database, and whether many or most errors are clerical or due to database glitches. The proposal would engender more legal confusion that will ineluctably result in costly litigation. Additionally, a cost/benefit analysis has not been conducted and the economic impact of S.B.380 on Boards of Elections has not been addressed.

Conclusion and Recommendation

Ohio House Bill 3 that was hastily enacted in 2006 resulted in extremely complicated election rules, fiscally irresponsible effects, and a great deal of litigation. Ohio voters and Boards of Elections continue to feel the adverse impact of that election reform effort. Legislating piecemeal changes without fiscal assessments and supporting documentation will only make matters worse. Ohio's election law should be amended only after a comprehensive and deliberative review to make it more coherent, consistent, practical, and reasonable, and with care that voters will not be inadvertently disenfranchised.

For all of the foregoing reasons, we recommend that you exercise your veto power to reject S.B. 380 rather than signing this bill into law. A veto of this bill will permit a comprehensive review of Ohio's election laws that may serve as a basis for thoughtful and effective election reform. We hope you will help spearhead such a review.

Thank you for your consideration of this request.

Sincerely,

Sibley Arnebeck,
Common Cause Ohio

Robert M. Brandon,
President, Fair Elections Legal Network

John Burik, Phil Fry, Peter Johnson and Ron Olson
Members, Citizens' Alliance for Secure Elections
Members, Sec. of State's Voting Rights Institute (VRI) Advisory Council

Jonah H Goldman
Director, National Campaign for Fair Elections
Voting Rights Project
Lawyers' Committee for Civil Rights Under Law

Jon Greenbaum
Director, Voting Rights Project
Lawyers' Committee for Civil Rights Under Law

Meredith Hellmer and Meryl Johnson,
Co-convenors, Greater Cleveland Voter Coalition

Candice Hoke,
CSU Election Law Professor; Director, Center for Election
Excellence

Ellis Jacobs,
Miami Valley Voter Protection Coalition

Michele Lawrence Jawando
People for the American Way

Donita Judge, Esq.
Advancement Project

David Koeninger and Andrew Neuhauser
Advocates for Basic Legal Equality, Inc.

Gregory T. Moore
NAACP National Voter Fund

Norman Robbins
Member, VRI Advisory Council

Matthew Segal
Executive Director, Student Association for Voter Empowerment

Petee Talley
Chair, Ohio Voter Protection Coalition
Member, VRI Advisory Council.

Brenda Wright
Demos: A Network for Ideas & Action

cc: The Honorable Jennifer Brunner

http://www.velvetrevolution.us/cgi-bin/mt/mt-tb.cgi/215

Attorney Cliff Arnebeck: Ohio Republicans "Not Giving Up Jim Crow Strategy":



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