Ohio Gov. Mike DeWine speaks during an interview at the Governor's Residence in Columbus, Ohio, Dec. 13, 2019. DeWine recently signed into law restrictive new voter ID requirements. (AP Photo/John Minchillo, File)

Earlier this month, Ohio enacted a restrictive law, for no good reason, that will make it harder for many voters to cast a ballot. The measure passed the Republican-controlled Ohio legislature late last year and Governor Mike DeWine, also a Republican, signed it on January 6—exactly two years after the insurrection at the U.S. Capitol. Curtailing the right to vote is a crass way to commemorate the brazen assault on American democracy.

The Ohio law makes it harder to vote in multiple ways while failing to improve the security of the election system.       

First, it imposes a strict photo ID requirement for voting, making it one of the harshest ID laws in the nation. Photo ID laws aren’t inherently bad. The details of the law matter. On this score, Ohio’s law is unnecessary and harmful. Hopefully, the courts will also find it unconstitutional.

Before the law’s passage, Ohio voters could use one of a number of identifications when they checked in to vote, including a driver’s license, military ID, utility bill, bank statement, or paycheck, among other documents. Now, however, the list of acceptable IDs has shrunk considerably. A voter must have an Ohio driver’s license, state identification card, a U.S. passport, or a military ID. The ID must have the person’s name and photograph and be unexpired. No other identifications will suffice. A voter who does not have a proper ID can fill out a provisional ballot, but it will not count unless the voter trudges to the county board of elections within four days after the election to show an ID. (A voter with a religious objection to being photographed can fill out an affidavit to that effect at the polls or the board of elections office within four days of the election.) The primary sponsor of the bill, Republican state senator Theresa Gavarone, said, “We want to encourage people to vote, but on top of that, we want to give people that extra layer of confidence that we’re doing things right here in Ohio.” But the photo ID law has the exact opposite effect: it discourages people from voting while doing little to prevent fraud. In-person impersonation—the only kind of fraud an ID law can prevent—simply does not exist to any measurable degree. Hardly anyone is showing up to the polls pretending to be someone else.

Studies have found that strict photo ID requirements can disenfranchise voters, particularly affecting minority communities where citizens are less likely to have driver’s licenses or other government IDs. So, this new law doesn’t prevent fraud, but it does harm voters. It’s a solution in search of a problem.

If Ohio had looked to its southern neighbor, Kentucky, it would have seen how to implement a photo ID law the right way. Kentucky boasts an expansive list of IDs acceptable for voting and a fail-safe mechanism for voters who don’t have one. Kentucky IDs need not have an expiration date, meaning student IDs suffice. A voter without a photo ID can show a non-photo ID such as a Social Security card or credit card, fill out an affidavit under penalty of perjury as to why they don’t have an ID, and then vote using a regular ballot. This process reduces the number of provisional ballots, which means voters need not take additional steps to have their ballot counted. Election officials need not process extra ballots after Election Day, allowing them to provide better oversight of the voting process.

The Kentucky law resulted from a compromise. Its bipartisan support—not to mention its reasonableness—gave it an air of legitimacy and avoided protracted litigation. (Full disclosure: I worked on the compromise bill.)

Ohio’s law, by contrast, was a partisan measure, and a lawsuit is already underway to overturn the statute. Although federal courts have been too deferential to states on voting statutes and have upheld some voter ID laws in the past, the Ohio law is an extreme outlier that should not pass judicial muster.

The Ohio law makes other senseless changes to the state’s election administration. It prohibits curbside voting, except for voters with disabilities, by saying that “[u]nder no other circumstance may an elector vote in a vehicle or at the door of a polling place.” There is no evidence that curbside voting is subject to fraud. It simply makes it easier to administer balloting on Election Day, reducing lines at voting machines and helping physically challenged citizens and the elderly, who may have a harder time waiting in line even if they do not have a disability. It was also useful in many places during the COVID-19 pandemic. If local election officials want to implement curbside voting to help their polling places run more smoothly, the state should not stand in the way.

The law also limits drop boxes for absentee ballots to one per county, to be located on board of election property. Of course, Ohio counties are all different sizes, so this measure creates significant disparities in the ease of delivering a ballot. These differences will again fall disproportionately on minority voters who tend to live in larger cities. Vinton County, with a population under 13,000 (the Ohio county with the fewest residents), will have one drop box, and so will Franklin County, the state’s most populous county, which includes Columbus and has over 1,300,000 residents. And, again, drop boxes do not lead to fraud. Many states allow multiple, secure drop boxes without a problem. Washington, D.C., has them in secure locations all over the city, in all eight wards, with no rampant fraud. Ohio’s measure makes it harder to deliver a ballot without improving the election system’s integrity.

This is an off year for elections in most states but not for democracy overall. The rules enacted now will significantly impact the 2024 election—and beyond. Ohio has started 2023 off with a terrible example for the nation and an awful policy for its citizens.

Joshua Douglas

Joshua A. Douglas is a law professor at the University of Kentucky J. David Rosenberg College of Law and the author of Vote for US: How to Take Back Our Elections and Change the Future of Voting. Find him at www.joshuaadouglas.com and follow him on Twitter @JoshuaADouglas.