Common Cause Ohio and other voting advocates are urging legislators to derail a fast-tracked bill that would make it tougher for state courts to protect every voter’s right to cast a ballot in the 2016 presidential election.
Senate Bill 296 was introduced right before this year’s primary and amended in committee on May 11. Now Substitute Senate Bill 296 was then voted on and pushed to the Senate floor for a vote on the same day. The bill had two hearings in the Ohio House Government Accountability and Oversight Committee this week.
The bill would drastically limit state courts’ ability to extend voting hours on Election Day, a step judges have taken in past elections in response to malfunctioning equipment, inclement weather, or other technical problems.
Daniel Tokaji, the Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at Moritz College of Law at The Ohio State University* and Common Cause Ohio Board had this to say about the proposal in the Ohio Senate last week:
“To say that Substitute Senate Bill 296 is overkill would be an understatement. This bill is the classic case of the cure that is worse than the disease. It will do nothing to solve the problem it purports to solve, especially since the Ohio legislature has no constitutional authority to regulate the procedures followed by federal courts. What it will instead do is to impose practically insurmountable barriers on access to state court for voters who are not wealthy.”
State statute requires the polls to be open for 13 hours, from 6:30 a.m. to 7:30 p.m., on Election Day. Courts may order extended hours for local voters when county boards of election face such problems as delayed openings of polling locations, voting machine failures, ballot shortages, or weather-related emergencies. None of these unexpected difficulties are caused by or are the responsibility of voters.
“This bill would curtail not just one but two rights that are fundamental in our constitutional democracy: the right to vote and the right of access to courts,” said Professor Tokaji. “We are tipping the scales of justice in favor of the state.
Substitute Senate Bill 296 would not only make it harder for courts to extend voting hours; an extreme provision would require any plaintiff seeking an emergency extension to post a cash bond before petitioning the court for action. This bond – essentially a poll tax – is supposed to cover the extra cost of keeping the polls open; in Hamilton County alone, that totaled $58,500 in 2015 and 2016.
While the bond may be waived for people who are indigent, only the person petitioning for extended hours would be permitted to vote, an absurd outcome. Judges could waive the bond but that creates another problem by forcing judges to cherry-pick which plaintiffs would be assessed the cost of overtime payments to poll workers. We should never put a price tag on our right to vote.
Substitute Senate Bill 296 also is problematic because it requires petitioners to prove “by clear and convincing evidence that no prospect of a fair election exists” unless voting hours are extended. This is a tougher burden than the “preponderance of the evidence” standard now used to support judicial extensions of voting hours, making it highly unlikely that any voter petitioning the courts will ever receive a refund of his/her bond payment.
It’s vital that we stop this legislation. Please call the chair of the Ohio House Government Oversight and Accountability Committee, Rep. Tim Brown, to let him know that there should never be a price tag on voting.
*Title for identification purposes only.