The following articlewas originally published in the Ohio Capital Journal and published on News5Cleveland.com under a content-sharing agreement.
As of Friday morning, almost 1.4 million Ohioans had already cast their ballot in this November’s election. But with Election Day drawing close, Ohio’s Secretary of State and watch dog organizations have filed new lawsuits tied to voting.
Secretary Frank LaRose’s case related to his ability to investigate supposed noncitizen registrations and has no real chance of affecting who can vote in the current election. But as election watchdogs have argued for months, it could serve as fodder for future claims of election fraud if the election doesn’t go a certain way.
Meanwhile, the ACLU of Ohio is challenging LaRose’s office for reinstating a questionnaire used if naturalized citizens are challenged at the polls. In 2006, a federal court permanently blocked the underlying state statute requiring naturalized Ohioans provide proof of their citizenship to vote. The ACLU case asks the court to force LaRose to issue a directive to county boards ordering them not to use the form.
LaRose’s case
Secretary Frank LaRose’s case demands the Department of Homeland Security turn over data the secretary believes would help him verify the citizenship status of people registered to vote in Ohio. The problem is DHS doesn’t maintain some consolidated list of citizens against which LaRose could check the voter rolls.
In a statement, a Department of Homeland Security spokesperson explained “DHS does not comment on pending litigation,” but added, “more broadly, (U.S. Citizenship and Immigration Services) has engaged with Ohio and will continue to correspond with them directly through official channels.”
The agency operates a program known as SAVE, which Ohio uses, that allows agencies to check an individual’s immigration status by inputting their name date of birth and a DHS issued number.
LaRose contends SAVE is “insufficient” because the state rarely has the required DHS identifier to check a particular filer’s status. He cited examples of people registered to vote who previously attested to the Bureau of Motor Vehicles that they weren’t a citizen.
“Many of those individuals may have become citizens in the meantime, but Ohio is simply unable to confirm one way or the other,” LaRose argued.
He contends with access to a pair of other DHS databases his office could cobble together what it needs, and that federal law requires the agency to comply with his request. In a letter earlier this month, the agency wrote back saying the state’s access to SAVE was sufficient.
In a press release, LaRose argued the “The Biden-Harris Administration is engaging in obstruction and outright abuse of power to prevent us from removing noncitizens from our voter rolls. I take my duty seriously, so if they want a fight over the integrity of our elections, they’ve got it.”
Last week Attorney General Dave Yost announced he’d found six instances illegal voting among the 600-plus cases LaRose’s office flagged out of the roughly 8 million Ohioans registered to vote.
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Shortly after Yost’s announcement, Cuyahoga County officials said one of those defendants had been dead for two years.
Another problem is the timing of LaRose’s filing. The secretary has been publicly complaining about lack of access since at least May of this year, and his complaint describes requesting access several times starting in July.
But he only filed his complaint on Thursday — less than two weeks before Election Day.
For months, voting rights groups have warned federal legislation requiring proof of citizenship and mass voter registration challenges aren’t meant to actually fix a problem. Instead, it’s a way of seeding the idea that the coming election is suspect. Back in July, Sean Morales-Doyle from the Brennan Center argued “that way, if the elections don’t play out the way that these folks want them to, they can use that belief to overturn the result, they can turn immigrants into a scapegoat.”
The case against LaRose
The ACLU of Ohio filed a contempt motion against the secretary for reviving a ‘show me your papers’ provision in state law that a federal judge derided as “shameful.” That statute, which the judge permanently enjoined in 2006, laid out a series of questions that should be posed to naturalized citizens who are challenged at the polls. It concludes with a requirement that the challenged voter provide proof of their citizenship before being given a regular ballot.
“Requiring naturalized citizens to bring additional documentation to verify their eligibility to vote is not only burdensome and discriminatory, it’s unlawful,” ACLU of Ohio legal director Freda Levenson argued in a press release. “After nearly 20 years of compliance with the federal injunction, Secretary LaRose suddenly decided to defy the injunction and impose an 11th-hour requirement forcing naturalized citizens to produce these papers.”
The ACLU’s complaint explains that following the court’s decision, the form used for challenges simply required to answer under oath “Are you a citizen of the United States?” If they answered in the affirmative, they were given a regular ballot.
But earlier this month LaRose revised that form and reincorporated the portions requiring challenged voters provide proof of citizenship.
“Not only did the Secretary reinstate the enjoined language, he specifically invoked the statute that was the subject of this Court’s injunction as his support,” the ACLU filing states. “As a result, challenged persons are once again unable to vote a regular ballot and must instead vote a provisional ballot if they fail to provide the required documentation.”
The Secretary has faced criticism earlier this year after a routine audit improperly swept in naturalized citizens and then the secretary ran an additional audit without firm legal grounding to do so.
The ACLU noted prior to filing their case, they sent notice to LaRose’s office explaining the new form violated the court’s injunction. The secretary’s office acknowledged their communication but declined to change the form.
“Once again,” their filing argued, “the Secretary has transformed naturalized citizens whose qualifications to vote are challenged into second-class citizen[s] or second-class American[s].”
