In Ohio, Voter Suppression Gives Way to Candidate Suppression

In Virginia’s recent gubernatorial election, the candidates were so uniformly unappealing to many Virginia voters that one can make the case that very little should be deduced from the results. Still, among many commentators on the Far Right, the effort to explain Cuccinelli’s defeat as anything but a reaction against his political positions has led to the following case being made: the major reason that Cuccinelli, lost was not that his Far-Right political views on social issues alienated the progressive voters of the rapidly growing northern counties of the state but that the Libertarian candidate, Robert Sarvis, siphoned off a significant portion of the vote that almost certainly would have gone to Cuccinelli if it had been a two-party race. In the end, the Democratic candidate, Terry McAuliffe, did win with 47.8% of the vote, Cuccinelli received 45.2% of the vote, and Sarvis received 6.5% of the vote. So simply adding Cuccinelli’s and Sarvis’s total would have clearly produced a winning margin. Of course, such a scenario assumes that Sarvis’ supporters would have voted for Cuccinelli if they had no other choice except for McAuliffe. It ignores the possibility that some may have been moderate Republicans so turned off by Cuccinelli’s extreme positions that they were willing to “waste” their votes on a “conservative” candidate with no hope of winning. It ignores the possibility that, given a two-candidate race, they might have simply chosen to stay home.

In the 2010 Ohio gubernatorial election, Republican John Kasich won with 49.04% of the vote, incumbent Democrat Ken Strickland received 47.04% of the vote, Libertarian candidate Ken Matesz received 2.39% of the vote, and Green Party candidate, Dennis Spisak, received 1.52% of the vote. Over the course of Kasich’s first term as governor, he has come under increasing criticism from the Libertarian elements of his party because of some the positions that he has taken, most notably in refusing to follow the Michigan model and push through right-to-work legislation, in opting to participate in the federal Medicaid expansion, and in refusing to dismantle all of the social safety-net programs for Ohio’s poor (a topic for another post). So there is a very real possibility that what just occurred in Virginia might also occur in Ohio. In fact, the GOP gerrymandering has given the Far-Right elements of the party a stronger base in the state than in Virginia; so it is very possible that a Libertarian candidate in Ohio might significantly outperform Sarvis. The last two presidential elections and the re-election of Democratic Senator Sherrod Brown by a large margin have demonstrated that current GOP majorities in the federal House of Representatives and in the Ohio House depend on gerrymandering and that the district-to-district advantage does not carry over to statewide races.

Kasich has done very little to increase his popularity across Ohio. The state’s economy and employment numbers have stabilized but have not markedly improved. Likewise, although Kasich’s approval ratings have improved from their low point following the repeal by referendum of the union-busting Senate Bill 5, they are still in the low to mid 40s—not the sort of numbers that will make an incumbent feel especially comfortable about his chances of re-election. Worse, the GOP has passed and Kasich has signed some measures that are certain to motivate progressive voters. To provide one especially significant illustration, to the most recent biennial budget bill, they attached, literally at the last minute, a set of measures that are making it much more difficult for women to obtain an abortion in Ohio. In some reports, the measures have been described as the most extreme in the nation, but, of course, the GOP-controlled states seem to be vying with each other for that distinction; so “most extreme” is a designation that keeps moving ever farther to the Right. Women’s groups have already organized one major rally against the measures at the Ohio statehouse, and I have observed at gatherings not specifically for that purpose that an Emily’s List-type of fundraising is being very enthusiastically organized among groups of professional women. Not coincidentally, although most of the attempts to suppress the vote in Ohio in the year ahead of the last presidential election were ultimately rolled back by the courts before the election, the legislature has passed a number of new voter-suppression measures aimed clearly at Democratic constituencies. The most extreme measures, such as an attempt to dramatically reduce turnout by college students, were barely turned back because of very public outcries and pressure from influential groups, such as university administrators, who could not afford to openly support anything so blatantly partisan.

So, given this backdrop, it is hardly surprising that even before the votes were counted in Virginia, the Republican-dominated Ohio legislature passed and Kasich signed a set of measures making it much more difficult for “minor-party” candidates to get on the ballot in Ohio. State law previously mandated that “all nominations for elective state, district, county and municipal offices shall be made at direct primary elections or by petition as provided by law.” Minor parties have always placed candidates on the ballot by gathering the required number of signatures on petitions. Supporters of the Libertarian candidate most likely to get on the ballot, Charlie Earl, have already gathered many of the previously required 28,000 signatures. But the GOP legislature has interpreted the either-or phrasing of the law as giving it the prerogative to require minor parties to also hold nominating conventions ahead of the primaries. Moreover, the new legislation has also moved up the filing date for the primaries to the beginning of February, making it almost impossible for a minor party to organize such a convention. And, additionally, the legislation has retroactively increased the minimum percentage of votes received in the last presidential election that are required for a party to be on the ballot, and it has further increased the percentage that must be received in subsequent elections in order for a minor party to remain on the ballot.

The Libertarian response has been predictable. Aaron Keith Harris, the spokesperson for the Libertarian Party of Ohio, has asserted that the Ohio GOP is “afraid to compete fairly in the arena of ideas with a party that actually stands for individual freedom and fiscal responsibility.” Mark H. Brown, the lead attorney for the Libertarian Party, who has filed several lawsuits challenging the legislation, sums up his position in this way: “Basically, what Ohio has done is retroactively taken ballot access away from the (Libertarian Party) and its candidates. You can pass valid retroactive legislation, but you have to be careful about it, and especially in the First Amendment or the voting context, it’s strongly frowned upon by the federal courts.” So the Far-Right supporters of many voter-suppression measures not just in Ohio but in states across the nation, who have vehemently defended the constitutionality of those measures, are here in the position of having to resist, in the same courts, Ohio’s new candidate-suppression measures.

On its side, the GOP has pointed out that elements of Ohio’s ballot law had been declared unconstitutional during the Strickland administration, and in the absence of any effort to fill the holes in the laws with constitutionally valid provisions, issues of ballot eligibility had often been delegated to the Secretary of State’s office. Anyone who remembers Secretary of State John Husted’s efforts to suppress voter turnout ahead of the 2012 election will understand what a dubious proposition that would be. Still, a hastily crafted piece of legislation that goes a long way toward preventing minor parties from getting on the ballot seems more an expedient than a truly efficacious—not to mention, ethical—resolution of a longstanding and long ignored issue created by a constitutional challenge. Husted’s own remarks on the Libertarian challenge to the new legislation are revealing. According to the Columbus Dispatch, “Husted said he wished the legislature hadn’t waited until the ‘eleventh hour’ to pass the bill. Although his office has time to put the new rules into effect, he said, he has no idea whether they are constitutional. ‘I’ve given up predicting what a federal judge will say,’ he said.”

I suspect that in attempting to restrict the impact of a Libertarian candidate on the 2014 gubernatorial election, Ohio Republicans have ironically insured that such a candidate will continue to receive a great deal of free media attention and, consequently, more votes. Paradoxically, in Ohio, the Libertarian candidate may attract some voters who would have preferred a candidate more moderate than Kasich has been on women’s issues and other social issues and those at the extreme Far-Right who would have preferred a candidate more like Ken Cuccinelli.

P.S. Here are poll results that, serendipitously, reinforce my analysis in this post: “Last week, the Ohio Democratic Party commissioned a poll from one of the most accurate pollsters in America, Public Policy Polling. Here’s what we learned, this race is in a dead heat! Governor Kasich and County Executive Ed FitzGerald are tied 41%-41%, with Charlie Earl, the Libertarian candidate, getting 6% of the vote.”


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