The controversy surrounding Ohio's new voter suppression election law known as HB 3 (House Bill 3) has been well documented. The ID requirement is the most obvious hassle (bring an ID to vote, or a utility bill with your name and address if your ID was issued before you moved.) Also, if you're a naturalized citizen, even if you've been here for 50 years and always voted, they want to see your naturalization papers. (I'm having flashbacks to an old WWII movie with the Gestapo demanding "Ihre Papieren, Bitte!")
One thing I haven't seen examined regarding this legislation (which for all appearances seems to be nothing less than an attempt by Ohio Secretary of State Ken Blackwell to create a perpetual Republican majority in the State) is the fact that Kenny himself has provided the Ohio Attorney General a new tool to investigate and prosecute the Secretary of State and his co-conspirators for election fraud stemming out of the 2004 Ohio election fiasco.
The items that won't affect voters personally, but are nonetheless a stab at the heart of the integrity of Ohio elections were succinctly summarized by Ohio 2nd Blog:
HB3's most publicized provision will require positive identification before casting a vote. But it also opens voter registration activists to partisan prosecution, exempts electronic voting machines from public scrutiny, quintuples the cost of citizen-requested statewide recounts and makes it illegal to challenge a presidential vote count or, indeed, any federal election result in Ohio.
The following analysis was forwarded to me by another attorney who (for now) wishes to remain anonymous.
[Disclaimer: I have not cross-checked his research myself, but his reasoning looks sound. I've added some html formating to his original letter to me, and added public domain links to the statutes and case law he cites, where available, but credit for the research belongs to someone else.]
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Ken Blackwell and his associates need to be investigated for potential election fraud and civil rights violations in the 2004 elections, and I am calling on Marc Dann and Betty Montgomery to announce that they will do so if elected.
The Ohio Attorney General can prosecute Ken Blackwell for 2004 election crimes. This is new law under House Bill 3. This may make the OAG race the most important statewide race in the country.
REPEAT: The Ohio Attorney General can bring criminal actions against Ohio election officials, including the Secretary of State, for election fraud perpetrated during the 2004 election under the new House Bill 3. That is my conclusion after an exhaustive legal analysis of this lengthy, Republican- written and oft- denigrated election reform statute. The analysis is posted below.
Ohio Revised Code (R.C.) section 109 governs the office of Attorney General. The new R.C. 109.95 from HB 3, effective May 6th, 2006, reads as follows:
"Sec. 109.95. Notwithstanding any provision of the Revised Code to the contrary pertaining to prosecutorial authority, the attorney general may initiate criminal proceedings for election fraud under section 3599.42 of the Revised Code which results from a violation of any provision of Title XXXV of the Revised Code, other than Chapter 3517 of the Revised Code, involving voting, an initiative or referendum petition process, or the conducting of an election, by presenting evidence of criminal violations in question to the prosecuting attorney of any county in which the violations may be prosecuted. If the prosecuting attorney does not prosecute the violations within a reasonable time or requests the attorney general to do so, the attorney general may proceed with the prosecution of the violations with all of the rights, privileges, and powers conferred by law on a prosecuting attorney, including, but not limited to, the power to appear before a grand jury and to interrogate witnesses before a grand jury."
Analysis: There are three key points to be made here.
This is a new enforcement power given to the OAG. Previously, enforcement of election fraud statutes, which are contained in O.R.C. Title 35, and which are mostly fifth degree felonies, (some misdemeanors, some greater felonies) fell only to local prosecutors. The new 109.95 now gives this power equally to the OAG, without stripping it from the locals. The Secretary of State's office retains its right, from the old law, to an independent investigation in election fraud matters.
This power does not extend to, and was specifically withheld from, enforcement of R.C. 3517. Section 3517 contains the law about the formation of political parties, and the laws governing campaign contributions in Ohio.
Under this new statute, to make this completely clear, the AG's office is specifically prohibited from prosecuting campaign finance law violations.
But here's the good news. After lengthy legal research and analysis, in conjunction with other people studying the same topic, I've come to the conclusion that 109.95 allows the OAG to prosecute violations of election laws that took place before 109.95 took effect this past May. This statute does not violate the ex post facto clause of the U.S. Constitution.
Repeat: This statute can be applied retroactively, limited by the appropriate Statutes of Limitations, and potentially imposing only the penalties in place at the time of the offense.
The OAG can prosecute election law crimes from the 2004 elections, probably until 2010. The Ohio Statute of Limitations for felonies is six years (which may leave out the 2000 elections). The penalties for a fifth degree felony in Ohio include six to twelve months in jail.
How could a Republican legislature leave this door open? Three things come to mind:
They don't think they'll ever lose; or
They really hate Ken Blackwell. Even this Republican legislature was so embarrassed by Blackwell in 2004, that they passed the new Ohio R.C. 3501.052(A), (B), (C), (D) and Section 12. These laws say that the Secretary of State is kept from serving as a campaign chair in an election other than his or her own, and as a treasurer or in any other official capacity for any committee named in an initiative petition or in a referendum petition. Or
(Most likely) They're idiots who don't know how to write legislation--since probably 2/3 of HB 3 is unconstitutional.
Here we go with a legal analysis of 109.95. Feel free to cross- research and check me if I'm wrong.
Legal analysis:
The new statute can be applied retroactively because it does not violate the ex post facto clause of the U.S. Constitution. A very long line of cases has held throughout Ohio and U.S. law that, "the manner by which an accused is charged with a crime... is strictly a matter of procedure, and a change in such procedure does not deprive an accused of an substantial right or protection, and thus dies not constitute a violation of ex post facto...." Wells v. Maxwell, 174 Ohio St. 198, 200, 188 N.E.2d 160 (1963).
There is a substantial set of Ohio Supreme Court decisions following Wells, including Orr v. Mack, 83 Ohio St.3d 429, 700 N.E.2d 590, (1998); State v. Lazeroff, 77 Ohio St.3d 237, 673 N.E.2d 1273, (1997); and State v. Waters, 67 Ohio St.3d 321, 617 N.E.2d 1110, (1993).
The Wells case itself followed very settled law, dating at least from 1925 in the U.S. Supreme Court case of Beazell v Ohio, 46 S.Ct. 68, which stated that the, "prohibition of ex post facto legislation does not prohibit legislation as to procedure not affecting matters of substance."
So, the basic logic is, since a local prosecutor could have brought charges for crimes committed in 2004, just adding another layer of potential prosecution, without changing the crime itself, is not unconstitutional.
Further, there would be no defense along the lines of "this isn't fair," or other such whining. The Sixth Federal Appellate Court, whose jurisdiction includes Ohio, held this in U.S. v. Prickett, 790 F. 2d 35 (1986): "A change in law which is procedural is not ex post facto, even though it may work to the disadvantage of the defendant."
I was unable to find any law that disagrees with this basic proposition.
So, the law is clear. The new R.C. 109.95 can be applied retroactively, back six years (the statute of limitations for 5th degree felonies). The OAG taking office in 2007 can prosecute election law crimes from the 2004 elections. However, of course, the prosecutor would have to seek the penalties that were in force at the time of the offense to avoid ex post facto problems, since HB 3 changed some of the penalties.
Crimes constituting election fraud arise under R.C. 3599, et. al. 3599.42 says: "A violation of any provision of Title XXXV [35] of the Revised Code constitutes a prima-facie case of fraud within the purview of such title." Prosecuting, say, a Secretary of State could fall under 3599.36 (Election Falsification) or 3599.24 (Interference with conduct of election), among other crimes (both of these are Felony 5's).
Either Marc Dann or Betty Montgomery can prosecute Ken Blackwell for 2004 election frauds under HB 3. Simple as that. So could Petro, as far as that goes.