A voter shows identification to an election judge. (Photo by Jeff Swensen/Getty Images)

A federal district judge in Ohio has given the green light to a requirement that naturalized Ohio U.S. citizens show proof of citizenship to cast a ballot. In 2006, the same judge determined a statute requiring challenged voters provide proof was unconstitutional because it “subjects naturalized citizens to disparate treatment,” and permanently enjoined the law.

Now, however, the judge says circumstances are different, and the plaintiffs demanding enforcement of that 2006 order haven’t demonstrated standing.

They brought the challenge after Ohio Secretary of State Frank LaRose revised the form used when a voter’s citizenship is challenged at the polls. Following the 2006 ruling blocking the law, a challenged voter only had to attest under oath that they were a citizen to receive a regular ballot.

LaRose’s changes reverted to the show-me-your-papers requirement, citing the enjoined statute as the relevant authority.

Following the judge’s order, the ACLU of Ohio issued a warning to naturalized voters urging them to bring citizenship documentation to the polls in case they’re challenged.

The judge’s opinion

District Judge Christopher Boyko, a George W. Bush appointee, emphasized that, “The legal landscape has significantly changed in the nearly two decades” since his previous order. He noted the statute itself has been amended to reduce the list of people who can challenge voters to precinct election officials, rather than a broader universe of potential challengers. That omission “likely limit(s) the risk of random challenges based on appearance or name or accent,” he contended.

Boyko also noted lawmakers have passed legislation requiring all voters show photo ID to cast a ballot, and that the Secretary has sent letters to new citizens warning them to update their license.

On the question of standing, the judge was skeptical the voters who challenged Ohio’s law in 2006 continue to face “actual or imminent concrete injury” from the secretary’s actions.

“They have offered no affidavits at all,” he wrote. “None saying that these six plaintiffs intend to vote and possess a photo identification card with the non-citizen designation, subjecting them to further questioning and proof or be restricted to voting provisionally.”

He added the plaintiffs didn’t attest to missing the secretary’s letter urging them to update their IDs, placing special emphasis on the fact all voters must show photo identification.

“Unlike in 2006,” he concluded, “plaintiffs have not demonstrated an undue burden on their fundamental right to vote nor that they have suffered disparate treatment so as to warrant the exercise of the Court’s remedial powers on their behalf.”

At the same time, the judge declined to lift the underlying injunction, in an apparent effort to keep voter challenges to only those who show up at the polls with a noncitizen driver’s license.

Reactions

After succeeding in court, LaRose took to social media calling it a “big legal win for election integrity.”

“You can’t make this up — the (ACLU of Ohio) sued me to try to force us to accept NON CITIZEN IDs without proof of citizenship,” LaRose wrote. “We fought and WE WON! American elections are only for American Citizens and in Ohio we make sure of it.”

Meanwhile, the ACLU of Ohio focused on informing affected voters about what they need to do to cast a regular ballot.

“We urge naturalized citizens to look at their license,” the organization wrote. “If it still bears a “noncitizen” notation, bring your naturalization papers or U.S. Passport if you plan to cast a ballot in person, in case you are challenged.”

Any naturalized citizens who are challenged at the polls, but don’t have proof on hand, can still vote a provisional ballot. But for that ballot to count, they’ll need to go back to their board of elections with documentary proof of citizenship. The deadline for curing a provisional ballot is November 9.

Follow OCJ Reporter Nick Evans on Twitter.