Election law

by Jeremy Leaming

Yet another federal court has dealt a major blow to Ohio Secretary of State Jon Husted’s dogged work to restrict voting in his state – this time it was provided by the U.S. Supreme Court. Today the justices refused to consider a federal appeals court opinion that blocked Husted’s attempt to shut down early voting days before the general election, The Plain Dealer reported.

In 2008, the state allowed early voting during the three days before Election Day. Husted has fought to close that window. The Obama campaign and Ohio groups sued Husted arguing that the measure to limit early voting would greatly hinder the right to vote of tens of thousands of people. (The campaign argued that in 2008 about 100,000 people voted in the three days preceding the general election.)

Rick Hasen, at Election Law Blog, says the action by the high court is part of “a run in the courts for those fighting Republican legislative cutbacks on voting rights in 2012.”

Last week, the U.S. Court of Appeals for the Sixth Circuit also kept in place an injunction against a provision of Ohio law that placed a large burden on voters to ensure they were casting the correct ballots at the right precinct. The injunction will allow ballots cast in the wrong precinct because of poll workers’ errors to be counted.

In an ACS Issue Brief, Loyola Law school professor Justin Levitt said attempts to curtail early voting do “not fall evenly on the population as a whole” noting that in past elections minorities overwhelmingly used the early voting windows. “In 2008, for example, African-Americans represented 13 percent of the total voters, and 22 percent of the early voters, but 31 percent of the total voters on the final Sunday,” before Election Day.

by Jeremy Leaming

A federal appeals court provided a setback to Ohio Secretary of State Jon Husted’s effort to create more hurdles to voting, by ruling against a part of the state’s rigid provisional ballot rules.

A panel of the U.S. Court of Appeals for the Sixth Circuit, in an unsigned opinion, kept in place an injunction barring election officials from refusing to count ballots cast at the wrong precinct because of poll workers’ errors. SEIU and other groups lodged a lawsuit against the state arguing that an injunction against the law was needed to “prevent the irreparable and unconstitutional disqualification of thousands of lawfully registered voters’ ballots in the upcoming November 2012 general election.” In August, U.S. District Judge Algenon L. Marbley agreed with SEIU’s argument and issued a preliminary injunction against the law.

Today’s Sixth Circuit action supported the bar against the provisional ballot rule. The appeals court noted that pursuant to Ohio law poll workers carry the burden of ensuring voters are at the correct precinct and that they have correct precinct ballots. The appeals court also took note of the “voluminous evidence” presented by SEIU “that poll workers give voters wrong-precinct ballots for a number of reasons, ranging from misunderstanding counties’ precinct location guides to failing to understand the vote-disqualifying ramifications of handing out wrong-precinct ballots.”

“The Secretary failed to present evidence to the district court that other factors besides poll-worker error caused wrong-precinct ballots, and the State offers none now,” the Sixth Circuit stated.

But the provision of the elections law requiring the rejection of right-place/wrong precinct ballots, the court continued “caused by poll-worker error 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 mere fact that these voters cast provisional ballots does not justify this additional burden; as the district court explained.”