Say Hello to the Ohio Official Who Might Pick the Next President

By Andrew Cohen

Didn't like having nine justices decide the 2000 election? Meet Jon Husted.

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Husted at a Republican rally in 2010, after his victory in the race for Ohio secretary of state. (Jay LaPrete/AP)

On August 31st, one day after the Republican National Convention ended in Tampa, a federal judge in Ohio issued a ruling that stymied an effort by Republican officials there to limit early voting dates for hundreds of thousands of registered voters. Citing the United States Supreme Court's Bush v. Gore ruling, the 5-4 decision which ended the 2000 Florida recount, U.S. District Judge Peter Economus wrote that Ohio lawmakers and bureaucrats couldn't, by "arbitrary and disparate treatment, value one person's vote over that of another."

Upon receiving word of the federal court order, the man responsible for implementing Ohio's election laws at first decided not to enforce it. Secretary of State Jon Husted, the Republican who had fought for years against voting rights advocates in and out of the courts as a lawmaker and, later, member of the executive branch, initially disregarded Judge Economus' order. Not just that. He defied it. He specifically ordered his county election boards not to restore the early voting hours the judge had endorsed.

It was only when the judge ordered Husted to court to personally explain his disobedience, a sure sign of judicial anger, that Husted relented. Relented -- but did not give up. Husted appealed Judge Economus' ruling to the 6th U.S. Circuit Court of Appeals, which is based in Ohio. No dice. On October 5th, the 6th Circuit affirmed Judge Economus' order. Husted then appealed again, to the United States Supreme Court, arguing that the federal courts shouldn't mess with state election laws. Again, no dice. The justices refused to hear the appeal.

Over the past year, in one election-related fight after another, Husted has proven to be a relentless partisan, the national face of voter suppression. Now, with one week to go before a close election, an election which many political observers believe could come down to Ohio, Husted is about to become something else: an unabashed local partisan who could very well decide who wins by deciding which rules apply. Is America ready for this? Ready for this man to be the one supervising the vote counting in the only state left that seems to matter?

EARLY VOTING

It was hardly a landslide, but Barack Obama won Ohio's 20 electoral votes in 2008 with 51.2 percent of the tally, receiving roughly 200,000 more votes than John McCain. It was the first time a Democrat had won the state since Bill Clinton in 1996, and only the third time a Democrat had won the prize since Jimmy Carter's victory in 1976. In the wake of the 2008 election, concerned that the Obama campaign's "ground game" had overwhelmed their Republican counterpart, state GOP leaders decided to do something about it.

One of the tactics they employed to neutralize the Democrats' advantage in voter registration, and early voting, was to make it harder for likely Democratic voters to cast early "absentee" ballots. Ohio Republicans achieved this goal in June 2011, thanks to a legislature infused with Tea Partiers from the 2010 midterm elections. The lawmakers sought to gut a popular 2005 state law -- one that had been enacted with Republican support -- that allowed registered voters to cast their "absentee ballots" until the day before the election.

But the Republicans' 2011 endeavor was a sloppy affair. The new law, HB 194, conflicted with another Ohio election statute, so legislators quickly passed another election law designed to clarify the intent of HB 194. In the meantime, HB 194 was suspended. In May 2012, Ohio's Republicans passed a third law, repealing HB 194 but not the intervening state law. And then there was the Military and Overseas Voter Empowerment Act, the 2009 federal law designed to ensure that service personnel and their families had plenty of time to cast their ballots.

One provision seemed to restrict registered voters' early voting rights. Another seemed to give them broader rights. And a third seemed to give different rights to different groups of voters. But if the texts of the measures were read together, the legislative purpose was as clear as it was unconstitutional: If you were a likely Republican voter, the Republican lawmakers wanted to give you lots of early voting time. But if you were not, lawmakers were looking for justifications to restrict your early voting days.

THE MAN

It was chaos, you could say, and so by law it was left to Husted to make sense of the mix. He was no stranger to these controversial voter laws -- he had help pass some of them. Husted was elected to the Ohio House in 2000. By 2005, he was Speaker of the House. And in 2010, he crossed over to the executive branch as Secretary of State. One of the stated goals of his office? To "provide leadership that builds trust and confidence in Ohio's system of elections through consistent and timely police directives."

The leadership has been there. But on some vital voting rights topics Husted has hardly been "consistent." Last year, for example, he publicly criticized a plan by his fellow Republicans to enact a strict new voter identification law in the state. "I'm for preventing voter fraud," he said, "but I'm also for the disabled Korean War veteran who doesn't drive, who doesn't have access to photo ID, having an easy access to cast that ballot because they too have earned that right." Unlike many other states this election cycle, Ohio did not pass a voter ID measure.

But lately Husted's views seem to have hardened. At a Tea Party event in September, for example, he declared that he was in favor of "streamlining" Ohio's voter identification laws, a position voting rights advocates took to mean that Husted now supports restrictions that could suppress legitimate votes in 2013 and beyond. At the time, a spokesman for the Secretary of State downplayed the apparent shift, saying that Husted's comments to the Tea Partiers were "environmental in general" and that Husted had not changed his tune.

Husted also has flirted with the conservative "True the Vote" movement, a group whose members today are roaming the countryside looking for voter fraud. In August, he agreed to speak at a True the Vote summit before cancelling. Ten days ago, confronted by a group of state senators alleging "a serious threat of intimidation" against minority voters, Husted's spokesman said the Secretary of State would "act swiftly to investigate and seek prosecution of any offenders." Is it reasonable today to trust that he will?

PROVISIONAL VOTING

Husted was wrong about early voting in Ohio. Wrong but not uncertain. Just before Judge Economus slapped down Husted's early voting directive, the Secretary of State fired two local Democratic officials, popular veterans of the job, who had sought to use their own discretion under state law to expand voting hours back to where they had been since 2005. A recap: You had three election officials. Two who wanted to make it easier for legitimate voters to vote. And one who wanted to make it harder for people to vote. It was the latter who fired the former.

If Husted's bad judgment were limited to the early voting fight, if this were the only partisan effort he had made to suppress the votes of certain registered voters, you might be able to argue that it was an exception to the rule. But Husted also has taken another divisive position with respect to another federal court ruling that stymied state voter suppression efforts. This time, the state's top election official is arguing that votes cast in the wrong precincts shouldn't ultimately be counted even if the mistake is the fault of poll workers and not the voter.

The 6th Circuit ruled earlier this month that such ballots now must be counted. But as late as last week, Husted and his lawyers were still in court fighting a ruling by U.S. District Judge Algenon Marbley, in Columbus, who declared that registered voters in Ohio couldn't be disenfranchised because of the misdirections of poll workers. The threat of thousands of legitimate votes not being counted was not abstract but very real, Judge Marbley noted -- it had happened before, just last year, under Husted's watch. Judge Marbley wrote:

In 2011, more than 1,800 disqualified provisional ballots were cast in the "right location, wrong precinct" while more than 2,400 disqualified ballots were cast in the "wrong location, wrong precinct." The State of Ohio denied these citizens their right to vote by systematically disqualifying all ballots cast in the wrong location or wrong precinct, with no individual due process or inquiry into the cause of the ballot error.

Husted's response? Calling it a "vote anywhere" concept, Ohio's top elections official said that checking these ballots more carefully to ensure that these mistakes wouldn't be made, checking them so thousands of legitimate Ohio voters would have their votes counted, would unduly burden poll workers and elections officials on Election Day. It is the same argument he had made, and lost, when he had argued against restoring early voting days to their 2005 level. Does this give you confidence that Ohio's votes will be counted fairly and accurately?

THE MOMENT

As Secretary of State, Husted is Ohio's Chief Elections Officer, representing all registered voters in a position that cries out for nonpartisan governance. The state's law and policies offer platitudes about how election officials "play an important role in our democracy" by ensuring "their neighbors can vote with ease on Election Day, while helping to safeguard the process so all Ohioans can have confidence in the results." You can find these lofty pronouncements on Husted's office website.

I guess it all depends upon what your definition of the word "confidence" means. Husted wants his constituency, the state's conservatives, to be "confident" that the state is cracking down on voter fraud, even though there is no evidence of widespread voter fraud in Ohio or anywhere else. But taking away early voting rights from Ohio citizens has nothing to do with voter fraud. Nor does discounting provisional ballots cast mistakenly as a result of a poll worker's error. These are voter suppression efforts in their purest forms.

Now turn the word "confident" around. By law, Husted is supposed to represent all voters. Given his public pronouncements and litigation over the past year, what confidence should minority voters in Ohio have that their votes will be counted under Husted's direction? Think of all the time and energy he has spent in the state trying to make it harder for people to have their votes counted. Now think of what Ohio's election might look like if the state's chief elections officer had devoted that time and energy to ensure broad voting rights.

Last week, theĀ New York Times' Nate Silver predicted that Ohio had a 50-50 chance of deciding the election. Why should America trust Jon Husted to neutrally oversee Ohio's voting process? What has he done in the past year to earn this trust? Speculation suggests that Husted has his sights on higher political office. Well, he's got what every starry-eyed local pol wants when he dreams of bigger things: a national audience. In fact, the whole world is watching, and waiting, to see if this man can meet his moment and do the right thing.


This article available online at:

http://www.theatlantic.com/politics/archive/2012/10/say-hello-to-the-ohio-official-who-might-pick-the-next-president/264201/