Federal Appeals Court Says Ohio Can’t Reject Ballots Cast in Wrong Precincts

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.”

Ohio officials were unable to explain to the Sixth Circuit why such ballots should be summarily dismissed, thus spurring the Sixth Circuit to agree with SEIU’s claims that this provision of the Ohio law does pose equal protection violations.

As election law expert and UC at Irvine law school professor Rick Hasen notes at Election Law Blog the Sixth Circuit action “represents a major victory for voters’ rights, regardless of party.”

Hasen notes the complicated nature of the litigation, but states the “main point” is that the ballot provision “violates the Constitution (equal protection and due process) for the state of Ohio to fail to count ballots cast in the right location but in the wrong precinct solely because of poll worker error.”

Hasen notes that Ohio officials could seek a review by the entire Sixth Circuit. “But this ruling has got to be right, and I hope the state leaves this alone and does not go further,” Hasen writes.

Not challenging the Sixth Circuit’s opinion, however, may be difficult for Husted. Ari Berman at The Nation details the efforts Husted has taken to hinder voting rights. For instance, Husted continues to try to trash early voting hours. “Early voting has already begun in Ohio,” Berman writes, “but four weeks out until the election, Husted is doing his damndest to confuse the hell out of Ohio voters and undermine their voting rights.”

As noted earlier this week, Victoria Bassetti, author of Electoral Dysfunction: A Survival Manual for American Voters, has argued that it makes no sense for government officials to make it tougher to vote. We should be encouraging more people to vote, not discouraging them by making it an arduous process.