Barry M. Horstman reports:
Thousands of ballots routinely disqualified in past Ohio elections will be counted in next month’s presidential race under a decision Thursday by a Cincinnati-based federal appeals court.
The U.S. 6th Circuit Court of Appeals, in a key ruling dealing with a problematic aspect of Ohio’s electoral rules that kept a Hamilton County judicial race undecided for 18 months, declared that Ohio must count provisional votes cast in the right polling place but wrong precinct because of poll worker error.
That decision upholds an earlier ruling by U.S. District Judge Algenon Marbley. It means that thousands of ballots that otherwise could have been tossed out instead may help decide whether President Barack Obama or Republican presidential nominee Mitt Romney wins the state’s 18 electoral votes.
One uncertainty is whether Ohio will appeal Thursday’s decision, as Secretary of State Jon Husted did in another case earlier this week involving Ohioans’ right to cast early in-person absentee ballots on the final three days before the Nov. 6 election.
In Thursday’s case, Husted was not involved in the state’s appeal to the 6th Circuit on the wrong precinct issue. Late Thursday, it remained unclear whether Ohio Attorney General Mike DeWine would appeal the 6th Circuit’s ruling before the U.S. Supreme Court.
Although both timetables are uncertain, the U.S. Supreme Court’s decision on whether to hear Husted’s appeal of the final three days’ ruling and Ohio’s choice on whether to appeal Thursday’s decision could come as early as today.
State Rep. Alicia Reece, D-Bond Hill, praised Thursday’s decision as one that will “ensure the votes of Ohioans are fairly counted.”
“I would urge the state of Ohio not to appeal this decision and to restore the integrity of our voting process,” Reece said.
An earlier Ohio Supreme Court decision spawned the legal challenge that led to Thursday’s ruling.
Under the state high court ruling, provisional votes – cast when there are questions over a voter’s eligibility, typically because of insufficient identification or a change of address not reflected in election board records – must be disqualified if they are cast in the wrong precinct, for any reason.
But the Service Employees International Union and homeless rights advocates filed a lawsuit challenging that position, arguing that the guideline unfairly punished many voters for poll workers’ errors.
In his July decision, Marbley agreed with the union and homeless advocates. On Thursday, a three-judge panel of the 6th Circuit upheld that portion of Marbley’s ruling.
“The state would disqualify thousands of right place/wrong precinct provisional ballots, where the voter’s only mistake was relying on the poll worker’s precinct guidance,” the 6th Circuit wrote. “That path unjustifiably burdens these voters’ fundamental right to vote.”
In the 2008 presidential race, roughly 40,000 of nearly 207,000 provisional votes cast in Ohio were disqualified. Of the invalidated ballots, about 14,000 were not counted because they were cast in the wrong precinct at the right polling place.
Under Thursday’s decision, those so-called “right church, wrong pew” votes would be counted if they are cast in the wrong precinct because of poll worker mistakes, such as misdirecting voters to the wrong precinct table at the correct polling place.
“The basic principle underlined in this case is that a voter’s vote shouldn’t be rejected because of someone else’s mistake,” said Daniel Tokaji, a professor at Ohio State University’s Moritz College of Law. “When you cut through all the legal technicalities, that’s what the case comes down to.”
Ohio’s previous electoral practice concerning wrong-precinct provisional votes, the appeals court said, “effectively requires voters to have a greater knowledge of their precinct, precinct ballot and polling place than poll workers.”
“Absent such omniscience, the state will permanently reject their ballots without an opportunity to cure the situation,” the court added. That, the court concluded, is an indefensible position for Ohio.
A second part of Thursday’s decision dealt with provisional ballots disqualified due to technical deficiencies on the provisional envelope, such as a voter’s missing signature or failure to print his name.
Marbley had also ordered Ohio to count such ballots, 568 of which were rejected statewide last year.
But the appeals court reversed that portion of Marbley’s decision, saying it found “no likely constitutional violation” in “voters’ failure to follow the form’s rather simple instructions.”
Husted said he was pleased with that aspect of Thursday’s decision.
“This is an election integrity issue,” Husted said. “Under Ohio law, a voter’s legal signature is one of the primary means by which county boards of elections can verify voters and legally-cast ballots, whether you are talking about provisional ballots, absentee ballots, poll books or petitions.”
There is, however, a lingering legal question on that point, because a consent decree arising from the homeless advocates’ earlier challenge of the state’s provisional rules mandates that some “deficient-affirmation” ballots be counted.
The appeals court sent that part of the case back to Marbley, urging him to “expeditiously address” and clarify the issue.