Advisory Memorandum To: The U.S. Commission on Civil Rights From: The Ohio Advisory Committee to the U.S. Commission on Civil Rights Date: May, 2018 Subject: Voting Rights in Ohio On January 17, 2018, the Ohio Advisory Committee (Committee) to the U.S. Commission on Civil Rights (Commission) elected to undertake a study of voting rights in the state. Specifically, in support of the Commission’s 2018 Statutory Enforcement Report on voting rights in the United States, the Committee sought to review related testimony received during a Committee briefing in 2006 to: (1) determine the extent to which voting rights concerns raised in 2006 remained challenges in Ohio in 2018; and (2) identify any new voting rights concerns that may have surfaced in Ohio since that time. As part of its review, the Committee held additional briefings on March 2, 2018 and March 9, 2018. Panelists who had presented to the Committee in 2006 on the topic of voting rights were invited to return to update their testimony. Additional panelists currently involved in voting administration and advocacy were also invited to participate.1 The following advisory memorandum results from a review of the testimony provided to the Committee in 2006, combined with the additional testimony obtained in 2018. It begins with a brief background of the issue to be considered by the Committee. It then identifies primary findings as they emerged from this testimony. Finally, it makes recommendations for addressing related civil rights concerns. This memorandum focuses on the right of all eligible U.S. Citizens to participate in free and fair elections, to vote, and to have their vote counted. While other important topics may have surfaced throughout the Committee’s inquiry, matters that are outside the scope of this specific civil rights mandate are left for another discussion. This memorandum and the recommendations included within it were adopted by a majority of the Committee on May 24, 2018. Background The right to vote is one of the most fundamental components of democracy—so important, that the U.S. Constitution includes four amendments protecting it.2 Established under the Civil Rights Act of 1957, as part of its core mandate, the U.S. Commission on Civil Rights is directed to “[i]nvestigate formal allegations that citizens are being deprived of their right to vote and have 1 Please see Appendix for meeting agendas and complete list of speakers. 2 U.S. Const. amend. XV, XIX, XXIV, XXVI. Note: Amendment XV guarantees the right to vote shall not be abridged or denied on the basis of “race, color, or previous condition of servitude”; Amendment XIX guarantees that the right to vote will not be abridged or denied “on account of sex”; Amendment XXIV guarantees that the right to vote will not be abridged or denied “by any reason of failure to pay poll tax or other tax”; Amendment XXVI guarantees the right to vote will not be abridged or denied on account of age for all citizens 18 years or older. Page 1 of 17 that vote counted by reason of their color, race, religion, or national origin.”3 Throughout its history, the Commission and its Advisory Committees have released numerous reports on the state of voting rights in the U.S.4 The Committee notes that the Commission is presently conducting a study of voting rights in the United States nationally, in fulfillment of its 2018 statutory enforcement report to be submitted to Congress and the President. As part of this study, the Commission has requested that its advisory committees consider undertaking studies on voting rights in their respective jurisdictions. In this context, the Ohio Advisory Committee submits this memorandum to the Commission regarding the present state of voting rights in Ohio. Overview of Testimony In considering this study the Committee sought balanced and diverse input from involved stakeholders representing all relevant perspectives. During each of the 2006 and the 2018 hearings, the Committee invited testimony from academic experts, county voting officials, state level elected officials representing both major political parties, and community advocates.5 All invited parties who were unable to attend personally were offered the opportunity to send a delegate, or to submit a written statement offering their perspective on the civil rights concerns in question. During the 2006 hearings, the Committee was able to achieve reasonably diverse and inclusive participation from each of the aforementioned parties. During the Committee’s 2018 revisiting of the topic, however, despite numerous outreach attempts, no representative from the office of the Ohio Secretary of State chose to participate, and the Committee was unable to secure Republican representation from the current Ohio Legislature. The Committee acknowledges these limitations in the perspectives that follow. Findings In keeping with their duty to inform the Commission of (1) matters related to discrimination or a denial of equal protection of the laws; and (2) matters of mutual concern in the preparation of reports of the Commission to the President and the Congress,6 the Ohio Advisory Committee submits the following findings and recommendations to the Commission regarding voting rights in Ohio. These findings and recommendations are intended to highlight the most salient civil rights themes as they emerged from the Committee’s inquiry. In recognition of the Commission’s continued study of this topic, in lieu of providing a detailed discussion of each finding presented, the Committee offers a general outline of themes, along with appropriate 3 Voting, 1961 Comm’n on Civil Rights Rep., Foreword, p. xv, http://www.law.umaryland.edu/marshall/usccr/documents/cr11961bk1.pdf (last accessed July 21, 2016). 4 See Historical Publications of the United States Commission on Civil Rights, Univ. of Md. Francis King Carey School of Law: Thurgood Marshall Law Library, http://www.law.umaryland.edu/marshall/usccr/subjlist_index.html (last accessed July 21, 2016). 5 The complete agenda and minutes from this meeting can be found in Appendix B. 6 45 C.F.R. § 703.2 (2018). Page 2 of 17 additional resources, as topics of reference for the Commission’s 2018 statutory enforcement report. The complete meeting transcripts are included in Appendix A for further reference. The following findings result directly from the testimony received, and reflect the views of the cited panelists. While each assertion has not been independently verified by the Committee, panelists were chosen to testify due to their professional experience, academic credentials, subject expertise, and firsthand knowledge of the topics at hand. 1. Voter discrimination can be thought of in two separate but related and equally important categories: voter denial, and vote dilution. a. Voter denial includes practices that impede eligible voters from casting their vote or from having their votes counted, such as strict voter ID requirements and limits on early and absentee voting.7 b. Vote dilution refers to practices that may weaken the strength of some groups’ votes, “particularly groups that are defined along lines of race or ethnicity,”8 such as gerrymandering. 2. Voting is regarded as a fundamental right and has been acknowledged as such by the U.S. Supreme Court since the 19th century.9 a. Based on the standard set forth by Crawford v. Marion County Election Board,10 if voting regulations burden voting rights, the court may consider the severity of the burden, the number of people affected, and the potential for disparate impact.11 The state then must justify the burden by demonstrating that it serves an important regulatory interest.12 b. Section 2 of the Voting Rights Act, as amended in 1982, allows a claim to be made of race discrimination based on a result that is discriminatory, regardless of intent.13 7 See Daniel Tokaji, Testimony Before the Ohio Advisory Committee to the U.S. Commission on Civil Rights, Mar. 2, 2018, Transcript, p. 3 lines 10-15; p. 4 lines 14-26. Available at: https://www.facadatabase.gov/committee/meetingdocuments.aspx?flr=155584&cid=268. (Hereafter cited as 2018 Transcript I). Note: after October 2018, transcripts will be available under the historical documents of the Committee, https://facadatabase.gov/committee/histories.aspx?cid=268&fy=2018. Also available at Appendix E. 8 Tokaji Testimony, 2018 Transcript I, pp. 3 lines 16-23, 4 lines 14-20. 9 Tokaji Testimony, 2018 Transcript I, p. 3 lines 20-31; Kerstin Sjoberg-Witt Testimony, 2018 Transcript I, p. 13 lines 21-28. 10 553 U.S. 181 (2008). 11 Tokaji Testimony, 2018 Transcript I, p. 5 lines 10-31, pp. 25 line 35-26 line 16 (citing Crawford v. Marion County Election Board, 553 U.S.). 12 Ibid. 13 Voting Rights Act, Section 2, 42 U.S.C. § 1973; see also Tokaji Testimony, 2018 Transcript I, p. 5 lines 27-39. Page 3 of 17 3. Voting practices and requirements in the United States vary widely from state to state.14 a. Variance in election law results in confusion and misinformation.15 For example, differences in voter ID laws between states may leave voters confused as to what is required in Ohio.16 Individuals with felonies on their record are permitted to vote immediately upon completion of their sentence in Ohio, but not in other states.17 This may lead many such individuals to be unaware of their right to vote, and may disproportionately impact people of color.18 b. There has been a significant increase in election related litigation in the United States since 2000.19 Litigation and resulting frequent changes in voting laws may contribute to voter and poll worker confusion regarding voting requirements.20 Changes are particularly damaging when rules are modified shortly before an election.21 The Ohio Secretary of State’s Office has reportedly not allocated any funding to voter education to make voters aware of the changes in 2018.22 “Community groups and nonprofit organizations have had to stand in the gap to provide voters with information about the mechanics of how, where, and when to vote.”23 4.