OSU ELECTION LAW: Cross-over Voting under Ohio Law (w Example)

[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



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





here is an example Todd Elbaum is really Bexley OH Resident Todd Apelbaum:

Controversial Clinton Guest: 'Osama for Obama'


March 04, 2008 10:42 PM

ABC News' Kate Snow and Eloise Harper report: A controversial party guest was spotted at Sen. Hillary Rodham Clinton's election night party in Columbus, Ohio Tuesday.

He was hard to miss. He was the one wearing the "Osama for Obama" t-shirt.

Columbus resident Todd Elbaum told ABC News his friend makes the t-shirts.

Elbaum did not hold back on his views of Obama when he was interviewed by ABC within full view of a Clinton staffer.

"The truth is he was born a Muslim, his father was a Muslim, his mother married a Muslim after divorcing his father. His grandfather was a Muslim. It doesn't matter. But what does matter is when Obama said he was never a Muslim. He was a Muslim. He was born a Muslim. He was a Muslim for six years of his life," Elbaum said.

Watch the VIDEO HERE.

-snip

http://blogs.abcnews.com/politicalradar/2008/03/controversial-c.html



photo of Todd Appelbaum (4th page)here:

http://www.tcjf.org/local_includes/downloads/11216.pdf

APPELBAUM HAS TIES TO CONTROVERSIAL RW EVANGELIST ROD PARSLEY:



Patriot Pastors

By: MARILYN H. KARFELD Senior Staff Reporter

-snip


Todd Appelbaum, a 44-year-old native Clevelander who has lived in Columbus for the past 25 years, attended the event along with a number of Republican government officials, including Blackwell. Former chairman of Columbus's chapter of American Israel Public Affairs Committee (AIPAC), Appelbaum is now active in a Jewish-Christian coalition that works to support Israel and other issues.

Evangelicals are loving patriots

Appelbaum, who brought three Orthodox rabbis to the pastors' gathering, attended in order to meet Parsley and to develop deeper relationships between the Jewish community and conservative evangelicals.

"Our freedoms are threatened, our Judeo-Christian beliefs are threatened by radical Islam," Appelbaum says. "If western civilization is going to be saved from these evil forces, who don't share our values, it has to be done through Christianity. There are only 14 million Jews throughout the world. There are two billion Christians. They are the only ones who can stand up to radical Islam."

-snip
http://www.clevelandjewishnews.com/articles/2005/07/29/news/local/acover0729.txt




osted: 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."

Kerry says it was a botched joke about President Bush, but people who heard him speaking to college students earlier this week quote him as saying, "you know, education, if you make the most of it, you study hard, you do your homework and you make an effort to be smart, you can do well. If you don't, you get stuck in Iraq."

Kerry apologized, after saying he meant that Bush had gotten the U.S. stuck in Iraq, but many took it as a slur against the soldiers serving there.

Bush bristled, saying that the suggestion that "the men and women of our military are somehow uneducated is insulting and it is shameful."

-snip

Ohio's Jewish community - including the 20,000 in Columbus - will vote almost straight Democratic down the line. A visit from Virginia's Eric Cantor - the only Jewish Republican in the House - is not about to change that. He was here last week but met mostly with the believers - the few who already intended to vote Republican. Today, Minnesota's Jewish Republican senator - Norm Coleman - is slated to pay a visit, but he will not be able to change the trend either.



-snip

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

[patrice]

1. It makes sense that with their nominee decided, for all intents and purposes, they would turn

their attentions to the next task on their list: get an opponent who will motivate their hateful base.

[liam_laddie]

2. I worked precinct 2-D in Cincy yesterday.

Form 10-W is the "I desire to switch parties" paper. It must be signed by the voter and witnessed by the signatures of all (4) poll workers. So it is a legal document, and I believe locks the voter into registration/affiliation with that party for four years before they can change parties again without a quite complicated procedure. I think we had about three/four R-to-D out of about 260 ballots cast. There were many non-aligned (hadn't voted in a previous primary, so no party affiliation) who requested a Dem ballot. Impossible to know if they were sneaky R's or truly wanted to support a Dem this time.
I can post the relevant law/directive if anyone wants it (or if I can find it again...)

[Berry Cool]

3. That's very interesting. I was never made to sign such a paper with witnesses.

I was never made to sign any Form 10-W at all. In fact, I was not even asked to sign the poll book.

I was crossing over Dem from unaffiliated. Nobody at my polling place in Cuyahoga County asked me to sign jack. I just asked for a Dem ballot and they handed me one.

[Ms. Toad]

4. That's the way it is supposed to work.

You ask for the ballot you want, and you are affiliated with that party until the next time you ask for a different party ballot.

You are only required to fill out a form if you are challenged (which you can be if you are switching parties). http://codes.ohio.gov/orc/3513.19

If you are challenged, you have to fill out form 10-W in order to cast a ballot for the party to which you are switching.

There seems to be a more rigorous effort to challenge voters under the new SOS (she has posted on her website that the form is required - the statute and court cases say otherwise).

[liam_laddie]

5. Party switching in primaries

My experience relates to Hamilton County...other counties may have different attitudes about this situation; their pollworker's instruction manual may not be specific, or the workers themselves didn't follow correct procedures. Our BoE pollworker manual (46 pp.) specified that party switchers are to fill out a 10-W (note: a NON-to-Dem or NON-to-Rep is not a party switch). BerryBush was handled okay about no 10-W required, but NOT being required to sign the poll signature book is an incredible blunder by the pollworker(s). BTW, we had four hours intensive training in Oct, then two hours more in Feb.

And thanks, Ms. Toad; I could not find the ORC section relating to this issue. I believe that having a 10-W on file is the prudent procedure, even if the ORC doesn't mandate its use. I don't know how to look up case law...at least our BoE decided to require a 10-W.

My error about the locked-in time period; used to be four years until the '80's, changed to two years more recently. At present, I think there are penalties possible for switching back at the next primary. The 10-W purpose is partly to discourage or eliminate nefarious meddling in the other party's affairs IMO.

Frivolous cross-overs may be responsible for the odd ratios of ballots cast vs. registrations in some counties. Rosebud57's OP in this topic (Mar 5, 8:51 pm) has a great thread about this possible rethug dirty trick in the notorious ring counties Clermont and Warren; haven't heard about Butler.

[mod mom]

6. Liam here are some stats from Hamilton County:

I looked at ballots cast for the Democratic Party in Hamilton
County Presidential v Congressional races:

Democratic Presidential 104,279 Ballots cast

Congress 01 UNDERVOTES 51,098
Congress 02 UNDERVOTES 6,866

Total UNDERVOTES in Hamilton Congressional Race =57,964!!!!

http://www.hamilton-co.org/BOE/inputdata/Electionsresults/RealTime/RealTime.pdf

If one were to take a Dem Ballot when they were really a Republican, I would think they wouldn't bother w lower ticket races-right?

[mod mom]

7. Here's OSU Election Law Prof Ned Foley on NO ENFORCEMENT on the Requirement:

This quote from OSU Election Law's Ned Foley:

March 6, 2008

Turnout, Technology and Nature
Marred Balloting in Ohio
By IAN URBINA and RANDY KENNEDY

-snip

One of the surprises Tuesday in Ohio was the number of registered Republicans who crossed over to vote in the Democratic primary, which election officials said was particularly obvious in usually heavy Republican precincts. But Edward B. Foley, director of the election law project at Ohio State University, said those crossover voters might not have been handled in accordance with state law.

Poll workers, he said, are supposed to challenge any voter whose eligibility they doubt based on voting history and whether the voter was affiliated with a different party for at least two years. The law also requires voters in question to sign a statement verifying their desire "to be affiliated with" and to support "the principles of the political party whose primary ballot the person desires to vote," he said.

"In Franklin County, my impression is that there was no enforcement of this requirement," said Professor Foley, adding that he had heard reports from several other counties where the law apparently was not enforced.

-snip

http://www.nytimes.com/2008/03/06/us/politics/06vote.html?scp=1&sq=urbina+cuyahoga+sandusky+brunner+ohio+ballots&st=nyt

[Ms. Toad]

10. The law does not require a challenge.

The language in the law is "may" not "shall." That means a challenge (and the form for challenged voters) is not required.

[Ms. Toad]

9. There is a presumption about party preference

based on your past history, but you can change affiliation at any primary.

ORC 3515.19(A)(3) "The right of a person to vote at a primary election may be challenged upon the following grounds: . . .

That the person is not affiliated with or is not a member of the political party whose ballot the person desires to vote. Such party affiliation shall be determined . . . using the standards of affiliation specified in the seventh paragraph of section 3513.05 of the Revised Code"

ORC 3513.05 For purposes of signing or circulating a petition of candidacy for party nomination or election, an elector is considered to be a member of a political party if the elector voted in that party’s primary election within the preceding two calendar years, or if the elector did not vote in any other party’s primary election within the preceding two calendar years.

Whether or not a challenge is mandatory was tested in a court case. The result of the case was a ruling that it is not mandatory to challenge to voters wishing to change parties. I'll try to add the name of the case later.

If the voter is challenged, "membership in or political affiliation with a political party shall be determined by the person’s 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." (ORC 3513.19(B)) That is the 10-W form. No waiting period - you can change parties each primary if you feel like it.

[Kurovski]

8. Kick. (nt)