OSU ELECTION LAW: Cross-over Voting under Ohio Law

[mod mom]

Cross-over voting under Ohio law


March 4, 2008

Edward B. Foley
Director, Election Law @ Moritz
Robert M. Duncan/Jones Day Designated Professor of Law
Moritz College of Law


Blogs at both the Plain Dealer and Dispatch are reporting Republican cross-over votes in the Democratic candidate for Senator Clinton on the ground that she would be an easier nominee for Senator McCain to beat. It is unclear how widespread this phenomenon is and whether, if calculable, could make a difference in either the statewide total popular vote or the awarding of delegates between Senators Clinton and Obama. There is also the question whether it is legal, and if not, whether it is remediable in any way.

Although it is widely reported that Ohio permits Republicans to vote in the Democratic primary (and vice versa), that is not technically true. Ohio law does permit voters to switch party affiliation on the day of the primary, but it has a rather awkward mechanism that attempts to ascertain that the switch is sincere—and to prevent insincere “party-raiding” of the kind that (as described above) is being reported today.

Section 3513.19 of the Ohio Revised Code states that it is the “duty” of poll workers in Ohio “to challenge the right of person to vote” in a particular party’s primary if a poll worker “doubts” the person’s eligibility based on the ground (among others) that the person is "not affiliated with or is not a member of the political party whose ballot the person desires to vote.” The same section further specifies that the poll worker is to determine the voter’s previous party affiliation by examining the voting records of the past two years. If those records show the voter to be a Republican, for example, then before giving the voter a Democratic ballot in the current primary, the statute then directs the poll worker to have the voter sign a “statement, made under penalty of election falsification, that the person desires to be affiliated with and supports the principles of the political party whose primary ballot the person desires to vote.”

-snip

But what of the possibility of a suit in federal court? Senator Obama theoretically could claim that the variable enforcement of this state law in different precincts violates the Equal Protection Clause of the U.S. Constitution as interpreted in Bush v. Gore. That claim might not be ultimately meritorious, but it cannot be rejected out of hand for the reasons I have explained in an extended analysis of this Equal Protection precedent (as well as in a follow-up piece).

-snip
http://moritzlaw.osu.edu/electionlaw/freefair/articles.php?ID=367

[Auggie]

1. Ohio is one fucked-up place

[mod mom]

4. Now that McCain has locked the nomination, we need to be aware of Republicans trying

to influence the outcome of our nomination (ie who they believe will be the easiest to beat in November) in states that allow voters to select either party.

[Auggie]

6. Absolutely. They don't miss a trick, do they?

I used to be in favor of cross-over voting, but no more.

[TheManInTheMac]

8. I'm curious, and not trying to flame you,

but what changed your mind? Was it because the cross-over voting did not work in your favor? or because you decided it was wrong regardless of who was doing it?

[Auggie]

15. This:

Section 3513.19 of the Ohio Revised Code states that it is the "duty" of poll workers in Ohio "to challenge the right of person to vote" in a particular party’s primary if a poll worker "doubts" the person’s eligibility based on the ground (among others) that the person is "not affiliated with or is not a member of the political party whose ballot the person desires to vote." The same section further specifies that the poll worker is to determine the voter’s previous party affiliation by examining the voting records of the past two years. If those records show the voter to be a Republican, for example, then before giving the voter a Democratic ballot in the current primary, the statute then directs the poll worker to have the voter sign a "statement, made under penalty of election falsification, that the person desires to be affiliated with and supports the principles of the political party whose primary ballot the person desires to vote."

In Ohio, at least, it sounds like it can be at the discretion of the poll worker. Who's to say all poll workers are up to the task or (gasp) honest? And that could be giving the the repukes an edge in choosing the weaker candidate to run against Walnuts.

I'll amend my last statement to say I would support cross-voting provided the party change is made well in advance -- four to six weeks, say.

[TheManInTheMac]

16. Thank you.

I don't post many comments here, cause it's kinda scary these days;-). It's nice to know that I can question a post and get such an intelligent and reasonable answer.

[mod mom]

9. This was portrayed in "American Blackout" based on what was done to Cynthia McKinney.

[BzaDem]

2. OBAMA won the crossover vote! Facts are a bitch. n/t

[mod mom]

5. Facts like this example:

OSAMA FOR OBAMA MAN @ Hillary Party in OH Ties to RW Controversial Evangelist ROD PARSLEY

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=4903995&mesg_id=4903995

Thanks to DUer anigbrowl for finding this:


Posted: November 02, 2006

A political tsunami in Ohio

COLOMBUS, OH - A few days before the 2004 election, George W. Bush came to Columbus, Ohio, seeking votes. Bush did not come alone. California governor Arnold Schwarzenegger came along for the ride. In the audience were two of a rare breed - Jewish Republicans.

Todd Appelbaum and Larry Levine awaited Bush wearing T-shirts emblazoned with the caption "John Kerry for president - of France." Earlier this week, in a downtown restaurant packed with Halloween celebrants, the pair fondly remembered the event. The timing was perfect as Kerry had made national headlines yet again. Former presidential contender and Massachusetts Senator John Kerry unintentionally handed the Republican party ammunition, just when it seemed to have run out.

"Did you hear what he said?" asks Appelbaum. "In Israel, no one would dare say anything like that."

-snip

He also supports Senator Mike DeWine, and he understands his candidates are in danger of extinction.

-snip

http://www.haaretz.com/hasen/pages/rosnerBlog.jhtml?itemNo=783200&contrassID=25&subContrassID=0&sbSubContrassID=1&listSrc=Y&art=1

[mod mom]

7. or this:

Ohio GOP roots for Hillary
BY HOWARD WILKINSON | [e-mail]


One of the worst-kept secrets of the Ohio presidential primary is that Republican party leaders have a candidate they are rooting for on the Democratic side.

Her name is Hillary Clinton, and they believe that if she wins the Ohio primary and goes on to become the Democratic nominee, she will be the one who unites their dispirited and divided party and give them their best chance of keeping the White House this fall.


It is a belief that the Clinton campaign says is wrong-headed and they will campaign across the state for the next three weeks making the argument that their battle-tested, experienced candidate is the only one who can go toe-to-toe with John McCain, the presumptive GOP nominee this fall.

-snip

http://news.enquirer.com/apps/pbcs.dll/article?AID=/20080213/NEWS01/302130097

[Liberal Veteran]

3. Sadly, it doesn't faze Hillary supporters in the slightest.

They'd support Clinton if we had a time viewer that showed Clinton winning the nomination and losing the general election.

It's more of the short term gains thinking that has kept this country divided and at each other's throats for the better part of 3 decades now.

[elixir]

10. Repugs and indies have been doing this throughout the campaign for BO and no one cared!! HA HA

[PuppyBismark]

11. Franklin Co. (Columbus, OH) Election Judges not trained in this law

This may be the law, but word has not reached the Franklin County (Columbus area) Board-of-elections.

I was an election judge for the OHIO primary in Franklin Co yesterday. As part of that duty, I had to attend 3 hours of training and I can tell you that this section of the Ohio Revised Code did not get discussed, nor were we told to even think about questioning the voter as to which party he wished to vote. In fact, the opposite is true. We were instructed to have the voter sign the voting book and check the party for which they wanted to vote. We were also instructed to not ask them out loud and check it for them as that would disclose private information. However, we then gave them a green or pink authority-to-vote slip which they gave to the machine judge. Guess what, the voter got a green one for Democratic and pink for Repub. Not very private information!!

So much for following the law in Ohio.

:sarcasm:

[Berry Cool]

13. Here's another example of how the law was not followed.

When I voted yesterday morning in Ohio, I was unaffiliated with any political party. I never have affiliated. I asked for a Democratic ballot. I was given one. No questions asked, not asked to sign anything, and given no slips of paper to hand to anyone.

They didn't even make me sign the poll book when I voted.

[mod mom]

14. Someone on an election integrity list serv just said the same thing:

"At the polling place where I worked, there was one voter who proudly proclaimed he was there to vote for Hilary in March and McCain in November.



Training was provided on the forms, but nothing was said about challenging them if we did not believe they were sincere (which is not really enforceable anyway)."

[Botany]

12. I freaking knew it.

I just had a feeling. I read about it on the east side
of Cuyahoga county (rich republican area) and heard
about it on WVKO from an election judge in Gahanna.

Texas looks like the same thing too this could be
why the caucus results are different from the primary
results.

I am sure good Rod Parsley & freinds of Kenny Blackwell
are right smack in the middle of this.

[John in Cincy]

17. Crossover voting

A friend suggested voters who take this strategy may be guilty of election falsification (a 5th degree felony, § 3513.19). I think successful prosecution is unlikely simply because the voter would only have to claim, shall we say, a change of heart.

However, I find professor Foley's idea re an Equal Protection action makes sense. Federal court found Equal Protection violated in Stewart v. Blackwell (2004) because Ohio voters were treated differently in different counties. But since the vote itself is secret, who would claim they were damaged?

Regardless of ethical/moral concern, I think it's simply another case of R's continued attempts to game the system.