Former Hamilton County Juvenile Court Judge Tracie Hunter should know more than most about Ohio voting rights. When she ran for juvenile court in November of 2010, she appeared to have lost to her opponent John Williams by about 2800 votes. But then it came to light that certain provisional ballots had not been counted because they were cast in the wrong precinct. The Board of Elections decided some of these ballots should be counted but not others. To make a very long story short, Hunter filed a lawsuit in federal court over the arbitrary manner of dealing with these provisional ballots, and after more than a year of wrangling over which provisional ballots should be counted, Hunter was declared the winner of the juvenile court race by 74 votes.
Hunter is now back in federal court, trying to reclaim her own right to vote. In October of 2014, Hunter was convicted in the Hamilton County Court of Common Pleas of one count of having an unlawful interest in a public contract, which is a felony, and sentenced to six months in jail. The Supreme Court of Ohio stayed her sentence pending appeal to the First District Court of Appeals, which affirmed her conviction January 15, 2016. Ultimately, on May 18, 2016, the Supreme Court of Ohio declined to accept jurisdiction to review Hunter’s case. Hunter then turned again to federal court, filing a petition for a writ of habeas corpus. U.S. District Court Judge Tim Black stayed her sentence pending habeas review. Hunter’s sentence is still stayed and she is still out of jail.
The Hamilton County Board of Elections (the Board) canceled Hunter’s voter registration based on her felony conviction. That’s what prompted her to return to federal district court, where she sought an injunction to allow her to register to vote by Ohio’s voter registration deadline of October 11, 2016.
In Ohio convicted felons cannot vote. What isn’t clear under Ohio law is whether that includes someone like Hunter who has been convicted and sentenced to jail but is not presently incarcerated. That was the question before U.S. District Court Judge Michael Barrett, who was assigned to Hunter’s case.
R.C. 2961.01 describes the process of disenfranchisement and restoration of rights. Convicted felons lose their right to vote, but that right is restored if the person is granted parole, judicial release, certain types of community control, or a pardon. Secretary of State John Husted, Ohio’s Chief Elections Officer, publishes the Ohio Election Official Manual, which consists of a series of directives that provide guidance on election issues. The one pertinent to this case is a directive that provides that to be qualified to register to vote, a person must “not be incarcerated (in jail or prison) for a felony conviction under the laws of Ohio, any other state, or the United States.”
So, Hunter argued that she isn’t presently incarcerated, and therefore she is eligible to vote. The Board argued that it was unclear whether a person like Hunter who remains at liberty as a result of a judicial stay of her sentence has been “judicially released” within the meaning of R.C. 2961.01(A)(2). The Board also argued that some of the Secretary of State’s directives weren’t clear, and that it is the conviction—not incarceration—that makes Hunter ineligible to vote under the law.
Judge Barrett’s opinion opts for simplicity. He found the Secretary of State’s directive on who can vote totally clear—a person is qualified to register to vote if not incarcerated for a felony conviction, and Hunter isn’t at this time. He also found persuasive a brochure called “Reclaim Your Right to Vote” produced by Husted’s office, the Ohio Department of Rehabilitation and Correction, and the Office of Reentry, and two sections in particular. One states, “there are only two circumstances where a person can temporarily or permanently lose his or her right to vote in Ohio for being convicted of a crime. First, if a person is convicted of a felony and is currently incarcerated for that conviction that person is not eligible to vote during his or her imprisonment. (emphasis added). Second, the brochure answers the question “is someone who has been convicted of a felony but is not currently incarcerated, can that person still vote?” with a yes. So, Judge Barrett held that “[t]he only reasonable interpretation of R.C. 2961.01 appears to be that because Plaintiff’s sentence has been judicially stayed, she has been judicially released for the time being.” He also noted that since Hunter is still appealing her conviction, it could ultimately be reversed or annulled, and she may never be incarcerated.
Judge Barrett also found, disagreeing with the Board, that it is the execution of sentence, not just the felony conviction itself, that is determinative for right-to-register purposes.
There are a couple of other parts of Judge Barrett’s decision that are very interesting. One is his finding that “the public interest factor also tips in favor of Plaintiff. First, public interest favors all eligible voters participating in the electoral process.” How refreshing, and from a man who was once chair of the Hamilton County Republican Party (and my law school classmate, at an even earlier time.) I hope Secretary Husted, who was recently taken to task by a panel of the U.S. Court of Appeals for the Sixth Circuit for the way in which he purged people from the voter rolls, is paying attention.
Finally, Judge Barrett declined to wait and let the Supreme Court of Ohio decide this question of state law, or to certify the question of the interpretation of “judicial release” to the Ohio high court. He saw no need to do either.
Read Judge Barrett’s complete opinion here.
For now, the Board has accepted Judge Barrett’s decision. Assuming this goes no further, Tracie Hunter will get to vote in this election. Does one vote really matter? Ask the woman who was elected by only 74 votes in the first place. Or ask Al Gore.