Appeals court: Officials don’t have to help inmates vote


Eric Heisig - Advance Ohio Media, Cleveland (TNS)



CLEVELAND, Ohio — Two weeks before the primary elections in Ohio, a federal appeals court said that elections officials in the state do not have to provide absentee ballots to jail inmates arrested after a deadline to request a ballot.

A three-judge panel from the 6th U.S. Circuit Court of Appeal on Tuesday reversed a ruling made in November by a federal judge in Columbus, who said the state and county boards of elections must make accommodations for certain inmates. The rulings applied to people jailed near the deadline to request an absentee ballot prior to Election Day.

Under Ohio law, people who can’t go to their polling place because they are ill or in jail have until noon on the Saturday before Election Day to request an absentee ballot. But state law allows people hospitalized, or parents whose child is hospitalized, after the deadline due to an unforeseen emergency to request an absentee ballot by 3 p.m. on the Tuesday of the election.

Plaintiffs’ attorneys, whose expert estimated that about 1,000 inmates were affected and unable to vote in each of the last four federal general elections, said there shouldn’t be a difference between hospitalized voters and people arrested around the time of the deadline. The Columbus judge, Michael Watson Jr., agreed.

But the 6th Circuit panel wrote in their opinion that requiring election workers to deliver absentee ballots would serve as an undue burden to thinly-stretched staffs during an already-hectic time period. This is especially true in rural counties where there are as few as two employees for a board of election, the opinion says.

Delivering absentee ballots to hospitals requires some planning, but getting into a jail to do the same task — which includes locating the inmate and going through security — would take up too much time, the opinion says.

“That Ohio can accommodate hospital-confined electors’ late requests does not establish that election boards can do the same for jail-confined electors,” the panel said in an opinion authored by U.S. Circuit Judge John Nalbandian.

Ohio law prohibits people from voting while they are serving time for a felony conviction, though people in jail awaiting trial or serving time for a misdemeanor conviction still have the right to vote.

The inmates were represented by the Campaign Legal Center, Demos and the Roderick and Solange MacArthur Justice Center. Campaign Legal Center trial litigation Director Mark Gaber said in a statement that “the appeals court has downplayed the significance of the problem, which disproportionately hurts voters of color and low-income voters.

“By looking down on voters that have been arrested – even though they haven’t been convicted of a crime – this court has created a second class of citizens,” Gaber continued.

Ohio Secretary of State Frank LaRose spokeswoman Maggie Sheehan said in a statement that “today’s ruling rightly upholds Ohio’s law as the General Assembly intended and gives our county boards of elections an added degree of predictability for elections administration.”

Tommy Ray Mays II and Quinton Nelson Sr. sued on Election Day 2018 for access to an absentee ballot. Both men had planned to vote that day but were in a Dayton jail on misdemeanor charges.

Watson ordered elections officials in Montgomery County to deliver absentee ballots and applications to the two men, wait there until both men filled them out and take them back to the elections board.

The underlying lawsuit said Mays and Nelson were just two of many inmates who were disenfranchised because of their arrests near the deadline to request an absentee ballot. A court filing from the men’s lawyers, who sought and were later granted class-action status, estimated that nearly 3,700 eligible voters were booked into jails in Ohio between the Friday and Monday prior to Election Day 2018.

Watson wrote that “hospitalized persons are not more worthy of additional voting privileges under our Constitution than jail-confined persons, and offering greater access to the ballot simply because the legislature values the former’s votes over the latter’s is exactly what the Equal Protection clause forbids.”

The 6th Circuit judges, however, said people arrested during that time period should have taken advantage of the chance to either vote early or request an absentee ballot. Ohio voters can cast their ballots in person 28 days before any Election Day and can also request an absentee ballot up to 10 months prior.

“There are easily several reasons why an elector may be unable to vote in person on Election Day … but Plaintiffs could have avoided all that uncertainty by taking advantage of the opportunities Ohio provides to vote early,” the opinion states. “In this regard, the Plaintiffs are no more burdened than any other elector.”

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Eric Heisig

Advance Ohio Media, Cleveland (TNS)

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