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Case: 2:14-Cv-00404-PCE-NMK Doc #: 18-1 Filed: 06/30/14 Page: 1 of 89 PAGEID #: 162 Case: 2:14-cv-00404-PCE-NMK Doc #: 18-1 Filed: 06/30/14 Page: 1 of 89 PAGEID #: 162 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION Case No. 2:14 CV 00404 OHIO STATE CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, LEAGUE OF WOMEN VOTERS OF OHIO, BETHEL AFRICAN METHODIST Judge Peter C. Economus EPISCOPAL CHURCH, COLLEGE HILL COMMUNITY CHURCH PRESBYTERIAN, U.S.A., OMEGA BAPTIST CHURCH, A. PHILIP RANDOLPH INSTITUTE, and DARRYL FAIRCHILD, Plaintiffs, v. JON HUSTED, in his official capacity as Ohio Secretary of State, and MIKE DEWINE, in his official capacity as Ohio Attorney General, Defendants. ANALYSIS OF EFFECTS OF SENATE BILL 238 AND DIRECTIVE 2014-06 ON EARLY IN-PERSON (EIP) ABSENTEE VOTING BY BLACKS AND WHITES IN OHIO BY DR. DANIEL A. SMITH 1 Case: 2:14-cv-00404-PCE-NMK Doc #: 18-1 Filed: 06/30/14 Page: 2 of 89 PAGEID #: 163 I. Background and Qualifications I am Dr. Daniel A. Smith, Professor of Political Science and University of Florida Research Professor (2010-2012). I received my Ph.D. in Political Science from the University of Wisconsin-Madison in 1994. For five academic years (2007-2011), I served as the Director of UF’s Political Campaigning Program, which offers a Master of Arts degree in political science with a special emphasis on political campaigning and practical politics. I currently serve as the UF Department of Political Science Graduate Coordinator, in charge of the M.A. and Ph.D. programs. I am also President of ElectionSmith, Inc., a political consulting firm based in Gainesville, FL, specializing in empirical research on electoral processes in the American states. For two decades I have conducted empirical research on electoral politics in the American states, focusing on the effect of political institutions on political behavior. I have written extensively on electoral process in the American states, including articles on early in- person voting in the American states, and have published more than 60 articles and book chapters, including many that have appeared in the discipline’s top peer-reviewed journals, such as the American Political Science Review. I have also published two academic books on electoral processes in the American states, and I am the coauthor of a leading textbook, State and Local Politics: Institutions and Reform, 4th ed (2014). I have taught graduate seminars on State Politics, American Political Parties, The Politics of Direct Democracy, The Politics of Campaign Finance, and The Politics of Reform, and I also regularly teach a large undergraduate survey course, State and Local Politics. Several of my courses have readings on early voting in the American states as well as politics in Ohio. I am a former Senior Fulbright Scholar, and I have testified before the U.S. Senate and the Florida Legislature on voting and election issues in Florida. I have received numerous grants and awards for my work on campaigns and elections, including from the U.S. Department of State and the American Political Science Association. I 2 Case: 2:14-cv-00404-PCE-NMK Doc #: 18-1 Filed: 06/30/14 Page: 3 of 89 PAGEID #: 164 am currently serving as the elected President of the State Politics and Policy Section of the American Political Science Association. I have served as an expert witness in election-related litigation in several states, hired by both plaintiffs and defendants. In 2010, I was the lead author of the “Direct Democracy Scholars” amicus brief in Doe v. Reed, which was successfully argued by the Attorney General of the state of Washington before the U.S. Supreme Court, and my scholarship has been cited by the U.S. Supreme Court. Finally, I have been quoted by hundreds of journalists over the past decade on state politics and electoral processes, including in The Economist, The New York Times, The Wall Street Journal, USA Today, The Washington Post, National Public Radio, Fox News, Voice of America, the Columbus Dispatch, and the Cleveland Plain Dealer. My curriculum vitae is provided in Appendix D. I have been assisted by Dr. Michael C. Herron (Dartmouth College) in compiling the data used in this report. I am being paid $300 an hour for work in this case, plus related expenses. II. Early In-Person (EIP) Absentee Voting in Ohio I have been asked by counsel for the Plaintiffs in this matter to analyze early in-person (EIP) absentee voting in Ohio. Specifically, I have been asked to assess whether reductions in EIP absentee voting resulting from the passage of Senate Bill 238 (“SB 238”) in 2014 and Secretary of State Jon Husted’s Directive 2014-06 are likely to have differential effects on black and white voters in Ohio.1 Senate Bill 238 eliminates the first week of EIP absentee voting and 1 This report was largely written prior to June 11, 2014, when the court ordered Secretary Husted to set uniform hours including the last two days of the early voting period. The below analysis therefore includes the last two days of the early voting period. 3 Case: 2:14-cv-00404-PCE-NMK Doc #: 18-1 Filed: 06/30/14 Page: 4 of 89 PAGEID #: 165 Secretary Husted’s Directive 2014-06 eliminates EIP absentee voting on the last two days of the early voting period, all Sundays, and some Saturdays. 2 In conducting my analyses, I draw on publicly available data sources and use standard statistical methods. In short, I show that there is strong empirical evidence in Ohio that a greater proportion of blacks not only cast EIP absentee ballots than whites but do so on early voting days that have been eliminated by SB 238 and Directive 2014-06. As such, blacks in Ohio will likely be disproportionately and negatively affected in 2014 by the reduction in EIP absentee voting days caused by SB 238 and Directive 2014-06. III. The Adoption and Reduction of Early In-Person Absentee Voting in Ohio In the aftermath of the 2004 General Election, the Ohio state legislature passed a law in 2005 creating EIP absentee voting. The law, HB 234, gave registered voters the right to cast a non-excuse absentee ballot in person at sites designated by County Boards of Elections (BOEs) as early as 35 days prior to Election Day.3 Under HB 234, Ohio’s 88 county BOEs were granted considerable discretion with regard to the methods by which Ohio registered voters were permitted to cast EIP absentee ballots. Voters operating under HB 234 typically filled out paper absentee ballots in person, on the spot, and then cast their ballots. HB 234 also allowed voters to request absentee ballots at BOEs, leave BOE offices with ballots, and return later to cast ballots in person. Moreover, voters who request and receive their absentee ballots in the mail are permitted to return their ballots in 2 Senate Bill 238 amends Ohio Rev. Code §§ 3509.01, 3511.10, and is available: http://www.legislature.state.oh.us/bills.cfm?ID=130_SB_238. Secretary of State Jon Husted’s Directive 2014-06 is available: http://www.sos.state.oh.us/sos/upload/elections/directives/2014/Dir2014-06.pdf. 3 2005 Ohio Laws 40 (Sub. H.B. 234), amending Ohio Rev. Code §§ 3509.02–3509.04. 4 Case: 2:14-cv-00404-PCE-NMK Doc #: 18-1 Filed: 06/30/14 Page: 5 of 89 PAGEID #: 166 person to BOEs. Finally, some BOEs apparently permit registered voters to cast “absentee” ballots in person in their offices on direct recording electronic (DRE) voting machines. In Ohio under HB 234, EIP absentee voting included a so-called “Golden Week” of early voting. During this period, eligible voting age citizens were permitted to register to vote at BOE offices and then request absentee ballots that they could fill out and cast in person at that time. In the 2012 General Election, Ohio’s Golden Week ran from Tuesday, October 2 through Tuesday, October 9, 2012.4 Some counties permitted absentee ballots to be cast in person on Saturdays and Sundays. Although they were not allowed to distribute absentee ballots on Election Day, BOEs were permitted to accept absentee ballots dropped off at their offices until polls closed at 7:30 p.m. on November 6, 2012. In the 2012 General Election, EIP absentee voting ceased on Monday, November 5, the day before the election. In February, 2014, the Ohio legislature passed and Governor John Kasich signed into law Senate Bill 238, which was followed by Secretary Husted’s Directive 2014-06. As a result of SB 238 and Directive 2014-06, the EIP absentee voting period in Ohio in the 2014 General Election will be considerably shorter. Under SB 238 and Directive 2014-06, county BOEs are to be open for EIP absentee voting on the following days and hours prior to the November 4, 2014 General Election: • Tuesday, Oct. 7, through Friday, Oct. 10: 8 a.m. to 5 p.m. • Tuesday, Oct. 14, through Friday, Oct. 17: 8 a.m. to 5 p.m. • Monday, Oct. 20, through Friday, Oct. 24: 8 a.m. to 5 p.m. • Saturday, Oct. 25: 8 a.m. to 4 p.m. • Monday, Oct. 27, through Friday, Oct. 31: 8 a.m. to 5 p.m. • Saturday, Nov. 1: 8 a.m. to 4 p.m. 4 According to data provided by the defendants in Obama for America, et al. v. Husted, et al., there was considerable variation in previous elections concerning the dates and hours of EIP absentee voting made available by BOEs. “In 2008, six of Ohio’s 88 counties chose not to offer any EIP absentee voting on the Saturday prior to Election Day, nearly all chose not to do so on that Sunday, and all were open during their regular weekday business hours on that Monday.” “In 2010, when fewer voters were expected, fourteen counties chose not to offer any EIP absentee voting on that Saturday, nearly all chose not to do so on that Sunday, and all were open on that Monday.” See, Obama for America, et al.
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