November 7, 2012
AP Legal Affairs Writer
COLUMBUS — A federal judge on Wednesday angrily demanded that attorneys for Ohio’s elections chief name the author of an election-eve order that placed the responsibility of explaining what kind of identification voters use on provisional ballots on the voters themselves.
U.S. District Court Judge Algenon Marbley’s voice rose nearly to a shout at times as he asked attorneys what research the Ohio Secretary of State’s office had done before issuing Friday’s after-hours order.
“You have a lot of explaining to do,” Marbley told assistant Ohio attorney general Aaron Epstein at a hearing in Columbus the morning after the election. A few minutes later, he demanded that Epstein and other state attorneys explain the rationale behind the order.
“Show me the facts that the secretary used to make the decision to change this directive at 7 o’clock on a Friday night on the eve of an election,” Marbley said. “I want to see it, and I want to see it now.”
State attorneys had acknowledged in an Oct. 24 hearing that it was the duty of poll workers’ to record such information, not voters.
Marbley asked what had changed between then and Friday’s new order. Epstein said he didn’t believe the order changed existing law on provisional ballots.
After a short break, Epstein told Marbley the drafting of the order was a collaborative effort by several members of the Secretary of State’s Office. Marbley was satisfied with the response.
At issue is an order released by Secretary of State Jon Husted that requires that voters check a box explaining what ID they can offer if they weren’t able to provide the last four digits of their Social Security number or their Ohio driver’s license number.
Alternative ID could include a military ID or a utility bill.
Voter advocates say putting the requirement on voters increases the likelihood that ballots could be wrongly rejected and asked Marbley to hear the issue.
Epstein said state law calls for voters and poll workers to share responsibility for providing the information.
The hearing was scheduled before Tuesday’s election, but the stakes of the outcome diminished after the election ended with President Barack Obama winning the presidency and GOP candidate Mitt Romney conceding.
Some had feared the election could come down to provisional ballots cast in Ohio. Such ballots are typically cast by voters who don’t have the proper ID or who cast votes in the wrong polling place.
During the hearing, Marbley told state attorneys that “Democracy dies in the dark,” and said last-minute orders done late in the day seek “to avoid transparency.”
Although he was hard on state attorneys, Marbley also played Devil’s advocate with attorneys for voter advocates who complained about the last-minute order.
“Since I the voter am providing you the poll worker with my type of identification, why can’t I the voter check off what type of identification I’m providing to the poll worker?” Marbley asked.
That could lead to the disenfranchisement of voters for failing to fill out that information, responded Barbara Chisholm, an attorney representing homeless voters.
Marbley acknowledged in court that his questions were animated because of his special regard for voting rights.
Marbley, who is black, grew up in the south and received his bachelor’s from the University of North Carolina. He has often spoken of the importance of voting rights to him personally based on events he saw growing up. President Bill Clinton appointed him to the bench in 1997.