Ohio’s Constitutionally Suspect Provisional Ballot Scheme Pending before Sixth Circuit

September 14, 2012

by Jeremy Leaming

Right-wing efforts to build hurdles to voting – especially in swing states – before the upcoming presidential contest have been dealt setbacks by federal courts within the month. For example, in Florida, Texas, and Ohio the courts have, at least temporarily, scuttled efforts to enforce rigid voter ID laws, curtailment of early voting times, and restrictions on voter registration drives.

But there are also a string of lawsuits challenging states’ handling of provisional ballots.

SEIU and others are fighting Ohio’s provisional ballot-counting rules. Specifically SEIU has sought a statewide injunction against an election law provision that disqualifies provisional ballots cast in the wrong precinct or with errors caused by poll workers. (The Help America Vote Act, (HAVA) enacted by the federal government after the 2000 presidential election debacle, gives voters the opportunity to cast a provisional ballot if poll workers are unable to verify their identities. As The New York Times’ Ethan Bronner recently put it, “anyone whose identity or voting precinct is in doubt can ask for a provisional ballot at any polling station and then has a number of days to return with the required documentation to make the vote count.)

In late August, U.S. District Judge Algenon L. Marbley sided with SEIU’s request for a preliminary injunction against Ohio’s provisional ballot scheme. SEIU argued that the injunction was “necessary to prevent the irreparable and unconstitutional disqualification of thousands of lawfully registered voters’ ballots in the upcoming November 2012 general election.” (See Marbley’s opinion here, courtesy of Election Law Blog.)

Judge Marbley noted that several years after HAVA was enacted, Ohio lawmakers created some voter ID requirements, which “have been referred to as ‘exceptionally convoluted.’” SEIU and the other groups argued before the judge that Ohio’s stringent voter ID law along with its process for handling provisional ballots are causes for “the relatively high rate of Ohio voters forced to cast provisional ballots rather than normal ballots in recent elections.”

Citing Supreme Court precedent, Marbley said Ohio’s provisional ballot scheme must be carefully examined especially “since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right to citizens to vote must be carefully and meticulously scrutinized.”

And after scrutinizing Ohio’s convoluted provisional ballot rules, the judge concluded the groups had a strong chance of proving they violate the Constitution’s equal protection clause in a number of ways.

For example, SEIU and the other challengers had argued, in part, that the provisional ballot scheme seriously hampers the right to vote by rejecting provisional ballots from registered voters because a poll worker gave them an improper ballot.

“But for each of the potentially thousands of voters whose wrong-precinct ballots are disqualified under this provision of the election code due to poll-worker error, Ohio’s strict prohibition imposes a severe burden on their right to vote – i.e. summary, arbitrary, and irreversible rejection of their entire ballot without notice,” Judge Marbley wrote.

And Ohio Secretary of State failed to provide compelling reasons for arbitrary rejection of ballots. “The Sixth Circuit has affirmed,” Marbley noted, “that the Ohio prohibition on wrong-precinct ballots unjustly restricts qualified voters by failing to make exceptions for poll-worker errors, and the Plaintiffs have submitted reliable, uncontroverted evidence demonstrating that a discrete class of prospective voters will be severely burdened by this feature of the law in the upcoming election.”

In an exhaustive opinion, the judge concluded that the groups had “demonstrated a likelihood of succeeding on their equal protection challenges to the requirement that the Boards reject wrong precinct provisional ballots cast due to poll-worker error,” as well as their other challenges.

Ohio Secretary of State Jon Husted, like his dogged defense of Ohio’s strict voter ID law and its effort to curtail early voting, is not giving up on the wobbly provisional ballot scheme. The case is now pending before the U.S. Court of Appeals for the Sixth Circuit on an expedited schedule.

As noted here, the Obama campaign lodged a lawsuit against the effort to limit early voting, and recently a federal judge ruled that Ohio’s proposed limits on early voting times would disproportionately impact minorities. “Plaintiffs submit statistical studies to support their assertion that low-income and minority voters are disproportionately affected by the elimination for those voting days,” stated U.S. District Court Judge Peter Economus in halting the proposed limits.

Ohio State University law school professor Daniel P. Tokaji, also a member of the ACS Board, noted earlier this year before the Senate Judiciary Committee that in Ohio, “as in many other parts of the country, we have seen rules adopted in the past decade – and especially in the past year – that make it more difficult for eligible citizens to vote and have their votes counted.”

And as numerous civil liberties groups, such as the Brennan Center for Justice, have noted, these efforts disproportionately undermine the ability of some the nation’s most vulnerable to participate in the democratic process.