Voting, Disability Rights Advocates Claim Ohio Photo Voter ID Law Violates Federal Disabilities Law

Starting last year, Ohioans had to present a photo ID to cast a vote. That change was part of a sweeping piece of legislation known as House Bill 458. In addition to requiring photo identification, the measure reduced the number of days available for early voting and for returning absentee ballots. Despite Republican lawmakers’ decision to renege a few months after passage, the bill also eliminated August special elections.

But now, the League of Women Voters is challenging that law over a different set of provisions. HB 458 imposes a limited list of individuals ‘authorized’ to return absentee ballots on behalf of someone else. Eligible relatives include a spouse, immediate family members, in-laws, grandparents, aunts and uncles or nieces and nephews.

Notably, grandchildren and cousins don’t make the cut. Other trusted non-family members like friends, neighbors, caregivers or even domestic partners could also face felony charges for returning a loved one’s ballot.

The federal case, filed in the Cleveland U.S. District Court, contends that restrictive list violates the Americans with Disabilities Act by imposing “extreme burdens to vote that voters without disabilities will never face.”

The allegations

The plaintiffs in the case include the League of Women Voters of Ohio and Jennifer Kucera, a disability rights advocate living with a form of muscular dystrophy known as spinal muscular atrophy.

Because the disease is degenerative, over time Kucera has progressively lost motor function. She now needs an electric wheelchair to get around and can only move her left arm, neck and head. Kucera has in-home caregivers who assist with most day-to-day activities like bathing, dressing and cooking.

“Because of her muscular issues,” the complaint describes, “her in-home professional caregivers also pick up her mail, open it for her, and when she wants to send mail, package any letters or items, take them to the post office and mail them on her behalf. Miss Kucera is unable to do any of these activities without these caregivers.”

The complaint notes the law outlaws “returning” or “possessing” another’s ballot but defines neither. The plaintiffs argue that vague language makes “ordinary conduct” fraught. Is it a felony to pick up a roommate’s blank absentee ballot in the mail? What about dropping their sealed and completed ballot in mailbox for them? Or in a dropbox?

Both are pressing questions for Kucera because she’s unable to do either on her own. The complaint explains the only enumerated family member who can help Kucera is her elderly mother, who lives half an hour away and has physical mobility issues of her own. Voting in last August’s special election was tortuous. Kucera had to request an electronic ballot, email a copy to her mother to print it, and then her mother had to drive the ballot to Kucera, stuff it in the separate return envelope, have Kucera sign it, and then drive to drop it off at the board of elections.

In November, Kucera didn’t vote at all because her application showed up after the absentee ballot deadline.

The complaint pointedly references a Voting Rights Act of 1965’s provision guaranteeing people with disabilities “may be given assistance by a person of the voter’s choice.”

“By placing any non-enumerated family assistor such as her in-home professional caregivers at risk of a felony charge if they assist her, the assistance restrictions deny Miss Kucera the right to obtain assistance by a person of her choice,” the complaint states. “Indeed, if Miss Kucera’s mother became unavailable, there would be no one in her life allowed under the law to help Miss Kucera to vote.”

Accommodation

Ahead of filing the lawsuit, the American Civil Liberties Union of Ohio traded letters with the secretary of state on implementation of HB 458. The ACLU raised concerns about disabled voters being able to acquire photo identification and explicitly warned that without a reasonable accommodation, that provision could violate the ADA. The organization suggested an affidavit attesting to the voter’s identity would make sense and aligns with existing procedures for voters who refuse photo identification on religious grounds.

In a return letter, the secretary’s chief legal counsel rejected the use of an affidavit. He cited state law describing how disabled people can vote absentee or have election officials come to their home in person. However, for voters like Kucera, absentee voting isn’t necessarily a solution, and provision for an in-person visit states the board “may” designate officials to deliver and return the ballot.

The ACLU similarly questioned the meaning of “return” and “possess” in the legislative language, and argued the limited list of relatives authorized to assist disabled voters could violate the ADA.

The secretary’s return letter dismissed complaint about authorized relatives arguing it “simply adds a criminal penalty” to a list that became law in 1996. As for determining criminal liability for ‘returning’ or ‘possessing’ another’s ballot, “that discretion belongs to the relevant county prosecutor where the alleged offense might have occurred.”

The lawsuit invoked the secretary’s discretion argument to allege provisions relying on those undefined terms should be void for vagueness.

“These terms are likely to result in arbitrary and/or discriminatory enforcement because the Ohio Code fails to set clear boundaries on what law enforcement or prosecutorial authorities can and cannot charge or prosecute,” the complaint argues.

Ohio Capital Journal reached out to the offices of the attorney general and secretary of state for comment. Both offices responded, “We don’t comment on pending litigation.”

This story was originally published by the Ohio Capital Journal and republished here with permission.