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“Democracy dies in the dark,” says Carolina-born judge

Election Day may have passed, but questions about voting rights are far from over. At the U.S. Supreme Court alone, at least four voting rights cases are pending and may be heard this term.

We’ll have more on that next week, but for now we’ll share what one son of the South had to say this week when confronted with a voter ID challenge in Ohio.

There, one day after the election, lawyers for Ohio secretary of state Jon Husted found themselves before U.S. District Judge Algenon Marbley, defending Husted’s last minute directive to poll workers to reject any provisional ballot in which voter identification information had been improperly recorded.  Marbley had previously entered an order requiring poll workers to record that information on the ballot and holding them responsible for any errors, so that ballots could not be rejected on that basis.

At that hearing (as excerpted in The Atlantic), state attorney Arnold Epstein barely got to his feet before Marbley — who was born in Morehead City and educated in Chapel Hill — lit into him.

THE COURT: Mr. Epstein, would you agree that voting is the linchpin of our democracy?

MR. EPSTEIN: Yes, Your Honor.

THE COURT: I do too. What concerned me about the directive is that it was filed on a Friday night at 7 p.m. The first thought that came to mind was democracy dies in the dark. So, when you do things like that that seeks to avoid transparency, it appears, then that gives me great pause but even greater concern.

Marbley then challenged Epstein to show him where in the Ohio law it said that Husted could shift the burden of completing the form on to voters.

THE COURT: Show me the language.

MR. EPSTEIN: I cannot find the word “shall” for you. I believe it’s contemplated in the way they designed the form where they said this is the information for the affirmation, and then the voter can provide at his or her discretion this other information.

THE COURT: Mr. Epstein, I have said on the record that Mr. Coglianese is probably one of the best election lawyers who’s been in my courtroom; maybe one of the best lawyers, period. I believe the same thing of you because of the nature of the work that you’ve done. Do you honestly believe what you just told me?

MR. EPSTEIN: I do, Your Honor.

THE COURT: If you honestly believe that, show it to me, because you were — in another context, and in this case, you have argued that it’s literally not there. You have argued that the absence of the language means the absence of the law. Now you’re telling me to look at this and find an obligation, a burden, if you will, within the penumbras of this statute. Show it to me. All I’m asking is to see it. If I can see it, I can believe it. But if you can’t show it to me, then make your penumbras argument.

We’re going to be transparent, and you’re going to tell me — if you expect to prevail, somebody is going to answer my question because no one is answering it from your side as to where it is. So tell me if it’s in the penumbras because you can’t point to the language. So show me where it is. Show me where it’s meant. Show me the legislative history. Show me the facts that the secretary used to make the decision to change this directive at seven o’clock on a Friday night on the eve of an election. I want to see it, and I want to see it now. Show it to me.

MR. EPSTEIN: Your Honor, I have no legislative history to present to the Court.

Case closed?  Marbley’s decision on the Husted directive is expected by Nov. 12.

 

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