The 2022 Ohio law requiring photo voter ID also established a list of close family members who can assist voters with their absentee ballots.

BY: NICK EVANS – Ohio Capital Journal

A federal judge this week blocked part of a sweeping 2022 Ohio elections law that placed sharp restrictions on who may return an absentee ballot. Under that law, only certain close relatives can assist someone with absentee ballots. Anyone outside that narrow list would face a fourth-degree felony if they were caught with someone else’s ballot.

The challenge, brought by disabled Ohio resident and activist Jennifer Kucera and the League of Women Voters, argued federal law allows a disabled voter to seek assistance from whoever they want — so long as that person isn’t their employer or union leader.

In her order, U.S. District Court judge Bridget Meehan Brennan determined the Voting Rights Act grants disabled voters that broad discretion, and permanently enjoined enforcement of Ohio’s absentee ballot assistance provisions for disabled voters.

But she cautioned her order is narrow in scope.

“The limited injunction relates only to: (a) disabled voters; (b) who want to utilize absentee voting; and (c) who do not want or cannot obtain assistance from one of state’s specified assistors.” Brennan wrote.

The Ohio law’s strict photo strict photo ID requirements, for instance, are not affected by the order.

Nature of the case

At the heart of the challenge is Kucera, a woman living a form of muscular dystrophy that leaves her wheelchair bound with limited motor function. She relies on the help of in-home caregivers for many daily tasks like bathing, dressing and cooking.

Under Ohio’s law, the only eligible family member who could return Kucera’s ballot is her mother who is elderly, lives half an hour away and faces her own health and mobility issues. Kucera argued her caregivers should be able to assist her with absentee voting under Section 208 of the Voting Rights Act.

Ohio Secretary of State Frank LaRose and Attorney General Dave Yost argued those provisions only applied to assistance at the ballot box — not for absentee voting. Judge Brennan rejected that narrow interpretation.

“As written, the statutory language encapsulates absentee voting since it refers to ‘all action necessary to make a vote effective,’” Brennan wrote, adding later, “The broad language chosen by Congress is determinative. Section 208 applies in equal force to absentee voting.”

State officials also argued Ohio law doesn’t conflict the VRA because the state can define who qualifies as a “person” under the law. Because section 208 refers to “a person” rather than “any” or “the” person, they argued, the statute presumes some “undetermined or unspecific particular” that state lawmakers may define. But Brennan said Ohio’s leaders are focusing on the wrong part of the phrase.

“Congress has already defined for the states — and the courts — who the unspecified person is: “a person of the voter’s choice,” Brennan wrote.

The judge added that because Congress included exceptions (a voter can’t look to their boss or an agent of their union) in the legislative text, the appropriate supposition is that those carve outs are the only ones lawmakers wanted — not that state officials are free to add more.

Looking around the country, Brennan added, courts have reached similar conclusions. In Arkansas, a law criminalizing people from assisting more than six voters “essentially added a clause to Section 208 that is not there.” In Wisconsin, a court rejected a legal interpretation prohibiting any third party from returning ballots, and in Texas a judge invalidated a law limiting who could serve as an interpreter.

“Use of an indefinite article is not an invitation for states to act in contravention of Congress’ clear intent: allowing disabled voters to choose for themselves a person to assist them with voting,” Brennan insisted.

“If Congress wanted to allow states to modify or this right, it would have said so,” she added.

“It did not.”

Relief & Response

In addition to Ohio officials defending the state’s restrictions, the Republican National Committee and the Ohio Republican Party intervened in the case. They argued enjoining the state law “would erode ‘Republican voters’ confidence,’” and could threaten GOP turnout.

“Intervenors cite no evidence that Republican voters would be dissuaded from voting if disabled voters are able to choose who assists them in submitting an absentee ballot,” Brennan wrote. “In any event, the clear violation of a federally guaranteed voting right in this case outweighs any harm.”

The parties and state officials also argued it’s too close to an election to make any changes. Judge Brennan applied a multi-factor test from an earlier case known as Purcell — timing, potential confusion, and burdens. Brennan determined with months to go until early voting begins timing isn’t a problem, and doing nothing would create confusion for disabled voters because of the disagreement between state and federal law. As for burdens following from her order, Brennan emphasized that protecting disabled voters who need assistance amounts to a subset of a subset of voters.

In a flurry of statements, leaders from the organizations challenging the state law praised the ruling. Jen Miller who heads up the League of Women Voter of Ohio, hailed it as a “victory for voters.”

“We applaud the court for upholding the Voting Rights Act because grandkids, roommates, and other common-sense helpers should be able to assist their loved ones without fear of a felony sentence,” she said. “Many Ohio voters with disabilities cannot easily travel to the one -county drop box while others may struggle to reach their mailbox or seal the ballot envelope.”

ACLU of Ohio’s legal director Freda Levinson said, “We are thrilled that the court ordered the state to stop denying Ohioans with disabilities the opportunity to cast their ballots via assistance from a trusted person of their choice. This is the correct reading of the Voting Rights Act and a validating decision for Ohio voters.”

Secretary of State Frank LaRose did not respond to a request for comment.

Follow OCJ Reporter Nick Evans on Twitter.