Federal Judge on Ohio's Ballot Order: 'Democracy Dies in the Dark'

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There are hundreds of thousands of ballots left to count in Ohio -- and a federal judge is angry about how the secretary of state there plans to count them. 

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Reuters

On the day after Election Day, just hours after Mitt Romney had conceded the presidential race to President Obama, Ohio Secretary of State Jon Husted sent his public lawyers into a federal courtroom in Columbus to try to disenfranchise his fellow citizens whose provisional ballots were not properly completed by poll workers. Here is the transcript for the extraordinary hearing held Wedneday by U.S. District Judge Algenon Marbley. It's worth a read to get a sense both of the judge's dismay at Ohio's position and Ohio's utter lack of a reasonable defense for Husted's voter-suppression efforts.

Even though it was colored "blue" a few nights ago, Ohio hasn't even begun to count hundreds of thousands of "provisional ballots" -- more than 30,000 in the urban center of Cuyahoga County alone -- cast by voters whose registration or identification was challenged at the polls. State officials are required to finish this task by the end of the month. So it still very much matters that the correct standard of review is applied by election officials when they sort through those ballots. It matters to get an accurate count in 2012, of course, but also because of the precedent it could set for the countless elections to come.

Voting rights advocates thought they had a workable deal about the standards for such ballots in late October when Judge Marbley entered a consent decree: (1) acknowledging that poll workers were required to record identification information offered by a voter and (2) making Ohio responsible, and thus the ballot otherwise valid, if any poll workers made errors while collecting or transcribing that information. Judge Marbley's decree was fair, it secured broad voting rights for registered voters, and it was consistent with the text of Ohio's election statutes and with certain representations made at the time in court by Ohio's attorneys.

But late Friday, after business hours and just a few days before the election, Husted sought to back away from the court-ordered standard. By means of a directive, he instructed local election officials to reject any ballots where the information was mistakenly recorded, absolving poll workers of the responsibility to properly complete the form. It is impossible to know how many registered voters would be disenfranchised by Husted's directive. But it doesn't look like we'll ever have to find out. Judging from his demeanor Wednesday, Judge Marbley doesn't appear inclined to let Husted's directive go into effect.

Here are three sections from the transcript which give you a sense of how it went for Husted's lawyers at the hearing. "Epstein" is Arnold Epstein, representing the state. Here, the judge barely waits for the lawyer to get to the podium:

THE COURT: Mr. Epstein.

Mr. Epstein, would you agree that voting is the linchpin of our democracy?

MR. EPSTEIN: Yes, Your Honor.

THE COURT: I do too. What concerned me about the 2012-54 directive is that it was filed on a Friday night at 7 p.m. The first thought that came to mind was democracy dies in the dark. So, when you do things like that that seeks to avoid transparency, it appears, then that gives me great pause but even greater concern.

Later, Judge Marbley challenged Epstein again. Here the judge is talking about the new burden imposed upon voters to fill out the information -- a burden the statute places squarely on poll workers:

It only became the voter's burden after the secretary declared it was the voter's burden and sent you in here to defend it. You haven't been able to show me any law that would justify that, nor have you shown me any facts that would require him to change it.

And then, finally, this instant classic. Here, the judge is asking Epstein to show him where in the language of the statute it allows Husted to shift the burden onto voters to complete the form -- where it allows poll workers to discount these ballots:

THE COURT: Show me the language.

MR. EPSTEIN: I cannot find the word "shall" for you. I believe it's contemplated in the way they designed the form where they said this is the information for the affirmation, and then the voter can provide at his or her discretion this other information.

THE COURT: Mr. Epstein, I have said on the record that Mr. Coglianese is probably one of the best election lawyers who's been in my courtroom; maybe one of the best lawyers, period. I believe the same thing of you because of the nature of the work that you've done. Do you honestly believe what you just told me?

MR. EPSTEIN: I do, Your Honor.

THE COURT: If you honestly believe that, show it to me, because you were -- in another context, and in this case, you have argued that it's literally not there. You have argued that the absence of the language means the absence of the law. Now you're telling me to look at this and find an obligation, a burden, if you will, within the penumbras of this statute. Show it to me. All I'm asking is to see it. If I can see it, I can believe it. But if you can't show it to me, then make your penumbras argument.

We're going to be transparent, and you're going to tell me -- if you expect to prevail, somebody is going to answer my question because no one is answering it from your side as to where it is. So tell me if it's in the penumbras because you can't point to the language. So show me where it is. Show me where it's meant. Show me the legislative history. Show me the facts that the secretary used to make the decision to change this directive at seven o'clock on a Friday night on the eve of an election. I want to see it, and I want to see it now. Show it to me.

MR. EPSTEIN: Your Honor, I have no legislative history to present to the Court.

What Epstein really is saying is that he has no legitimate legal argument to make because there isn't a legitimate argument to make. And the argument Ohio now is making instead to justify Husted's actions is atrocious. We shouldn't change the directive now, Epstein told Judge Marbley, because there is no way now to tell which ballots should be counted under the consent decree and which shouldn't be. Got all that? Having created two classes of provisional ballots by an unlawful directive, the secretary of state now wants none of them to be counted. Husted is lucky Judge Marbley didn't order him personally to appear in court.

The judge says he will have his order on the matter on Monday. If Husted has any shame he will simply obey that order and ensure that all those otherwise lawful provisional ballots are counted. Then again, if Husted had any shame there would have been no weaseling out of his prior commitments to the judge, no late Friday directive, and no lame defense for it in court on Wednesday. Judge Marbley is right. Democracy dies in the dark. And right now there is no place darker for the right to vote than Ohio under Jon Husted's reign.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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