The Akron Legal News

Legislature mulls new conditions to extend polling hours

KEITH ARNOLD
Special to the Legal News
Published: May 27, 2016

House committee members this week heard further testimony in support of a Senate bill, requiring any Ohio elector who desires a polling place remain open beyond the standard 7:30 p.m. closing must file a petition with a county court and post bond, among other requirements.

Senate Bill 296 was introduced as a countermeasure to the actions of a Cincinnati federal judge and pro-marijuana group during a pair of recent elections in southwest Ohio.

In both cases, according to bill’s sponsor Republican Sen. Bill Seitz of Cincinnati, judges issued last-minute orders extending polling location hours, resulting in excess of $57,000 worth of additional costs for elections-related expenses in Hamilton County alone.

“A precedent has now been set in Ohio for allowing courts to order an extension of the hours set by the legislature,” Seitz said earlier this week. “In the first case Judge Robert Ruehlman, a Hamilton County Common Pleas Court Judge, allowed for a 90-minute extension on Election Day 2015 at the request of former Senate Minority Leader Eric Kearney, on behalf of ResponsibleOhio,” the pro-marijuana group backing a failed legalization initiative.

Seitz said claims by the group that electors were unable to vote due to difficulties with the new electronic poll books were not true, testimony revealed.

He acknowledged there had been problems in the morning but they had been fixed by midday.

“The second case occurred during the 2016 March primary where Judge Susan Dlott, a United States District Court judge, ordered a 60-minute extension of the polls in Butler, Clermont, Hamilton, and Warren counties due to an accident which had occurred on I-275, holding traffic up for several hours,” Seitz continued. “This decision was particularly egregious as there had been no written complaint, no notice, no hearing, no evidence, no bond, no plaintiff, and no defendant, but instead was based on phone calls to Judge Dlott’s office.”

SB 296 would ensure that no order keeping polls open past the statutory closing time can issue without serving notice on the Attorney General and the Secretary of State, and further ensuring that those offices have an opportunity to be heard before any order issues.

In addition, the measure would requires that no such order can issue unless the court is presented with sworn testimony, sworn affidavits, or other evidence admissible under the Ohio Rules of Evidence.

Seitz said the former instance in 2015 that the judge’s decision was based on nothing more than unsworn testimony and social media posts.

“While voters have the right to vote at the polls from 6:30 a.m. to 7:30 p.m., they also have 28 additional days to vote absentee or in person for any reason whatsoever,” Seitz told committee members. “Acts of God, traffic accidents and the like should not then be a rationale for holding the polls open longer than the hours the legislature has set.”

An extension of polling hours comes at the expense of taxpayers, who are encumbered with the extra cost, the lawmaker said.

A plaintiff must show by clear and convincing evidence that there is no reasonable prospect of having a fair election unless the polls are ordered to stay open, according to the bill, which would also require the plaintiff to post a cash bond to be determined by the court after consulting the particular local elections board. The bond would be waived for an indigent plaintiff and it would be forfeited in the instance that such a court order was incorrectly granted.

“SB 296 does nothing to change current law in terms of allowing individuals to vote during the designated hours,” Seitz said. “Current law provides that if an individual is in line at 7:30 p.m. to vote they are still able to do so though it extends past the time allotted.

“SB 296 simply sets guidelines for what the courts may do when granting an order of extension for voters who are not in line by 7:30 p.m.”

The lawmaker cited the American Civil Liberties Union, which found the only cases since 2002 in which Ohio courts have kept the polls open past the statutory deadline, plaintiffs were the Ohio Democratic Party, Obama for America, Secretary of State (Jennifer) Brunner, and Kearney — not individual voters asserting their franchise.

“Elections become unfair when some counties have longer hours to vote than others,” Seitz cautioned. “This could in turn lead to utter chaos where statewide or multi-county elections are close.”

Democrat lawmakers are opposed to the bill’s passage and, instead, compare a provision of the bill to a Jim Crow-era poll tax. Opposing testimony during previous House committee hearings was provided by ACLU of Ohio, Ohio Voter Rights Coalition, League of Women Voters of Ohio, and Common Cause Ohio.

A third hearing before members of the House Government Accountability and Oversight had not been scheduled as of publication.

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