Rick Hasen

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.”