Category Archives: provisional ballots

A ChapinBlog.

Here.

Must read Ned Foley:

Ohio thus currently stands in a different posture than Florida, Colorado, Pennsylvania, and Virginia—the other presidential swing states with a somewhat elevated risk of hosting a dispute over the counting of their presidential ballots. Whereas in these states the Election Night gap between Republican and Democratic candidates would need to be less than 50,000 for the state to be within the margin of litigation, in Ohio the gap could be much larger, perhaps as high as 80,000 or even 100,000 votes. Moreover, it is important to understand the significance of the fact that the margin of litigation in Ohio is growing: whereas in 2004 Kerry could not have expected to overcome an Election Night deficit of 80,000 votes, in 2012 Obama reasonably could have thought that he would have had a decent chance to surmount even this large a deficit (had he needed to). It is as if Ohio, knowing that it is a prime target of a potential disputed presidential election, is expanding the size of the bull’s-eye.

Jonathan Bernstein: “Andrew Sprung notes that Barack Obama’s lead in Ohio went up yesterday from 100,000 to 166,000 votes. Yes, yesterday. Yes, that’s four weeks after the election. If that movement happened to be in the other direction, it would have come awful close to flipping the state…The mechanics of voting right now in the United States are a disaster waiting to happen. Everybody knows it. Barack Obama and Congress simply have no excuse for not acting now before the next very close election blows up on us all.”

Columbus Dispatch: “With two Ohio House races hanging in the balance, Democratic lawmakers threatened a lawsuit today over provisional ballots they contend are improperly being thrown out at the direction of GOP Secretary of State Jon Husted.”

Columbus Dispatch: “Rep. Al Landis’ lead in the Ohio House’s 98th District race has been trimmed to just 14 votes out of more than 47,000 cast, triggering an automatic recount and likely Democratic lawsuits over the counting of provisional ballots.”

The following press release arrived via email:

State Representative
Kathleen Clyde

FOR IMMEDIATE RELEASE: November 21, 2012

Contact: Faith Oltman, Legislative Aide to Rep. Clyde (614) 466-2004

Rep. Clyde Seeks Immediate Action to Ensure Counting of Valid Votes

Urges Sec. Husted to Issue Directive Ordering Compliance with Federal Law

  COLUMBUS – State Rep. Kathleen Clyde today sent the following letter to Ohio Secretary of State Jon Husted urging compliance with federal law.  The National Voter Registration Act of 1993 (the “Motor Voter” law) requires the counting of certain ballots cast in a voter’s former precinct.

See the letter below:

 November 21, 2012

Secretary of State Jon Husted

180 E. Broad Street, 16th floor

Columbus, Ohio 43215

Dear Secretary Husted,

County boards of election are now meeting to count provisional ballots and must certify their official canvass results by Tuesday of next week.  It has come to my attention that a category of ballots protected by federal law is not being counted in some or all counties.

At a meeting of the Tuscarawas County Board of Elections on Monday, November 19, 2012, the board staff recommended that all ballots cast in the wrong precinct and wrong polling location be rejected.  The board members initially tie voted but, after receiving input from your office, later adopted the staff recommendation of rejection of all but one of these ballots.  The deputy director of the board stated that these ballots are mostly cast by people who have moved but return to their former precinct to vote.  Under the National Voter Registration Act of 1993, such ballots must be counted so long as the voter’s former precinct and new precinct are in the same county and same congressional district.  See 42 USCS § 1973gg-6.

Your office has continually fought the counting of ballots cast in the wrong precinct even when poll worker error is at fault.  But on this point, there can be no dispute: federal law clearly requires the counting of this particular subset of ballots cast in a voter’s former precinct.  I ask that you issue a directive today telling counties to comply with federal law and count these ballots.

Respectfully,

Kathleen Clyde

State Representative

The Cleveland Plain Dealer reports.

“The Court also notes, with grave misgivings, that [Ohio Secretary of State Jon Husted]  changed an election rule on a Friday evening for an election scheduled for the following Tuesday, after repeatedly asserting, to both this Court and the Sixth Circuit, that he could not comply with injunctive relief ordered by this Court because he lacked sufficient time prior to the election. The surreptitious manner in which the Secretary went about implementing this last minute change to the election rules casts serious doubt on his protestations of good faith. Thus, in addition to the Plaintiffs’ successful legal arguments, the equitable doctrine of judicial estoppel is grounds for denying the relief sought by the Secretary and granting that sought by Plaintiffs.”

—Federal District Judge Algenon Marbley, in today’s provisional ballot ruling.

Moritz: “Nov. 13 (6:45 PM) - U.S. District Judge Algenon Marbley today issued an opinion and order granting a motion by the plaintiffs in NEOCH v. Husted. Judge Marbley agreed with the plaintiffs’ argument that a directive issued by Ohio Secretary of State Jon Husted violated an April 2010 consent decree. The state has already filed a notice of appeal.”

A spokesperson for SOS Husted told BuzzFeed that Husted is appealing because the ruling, if allowed to stand, would “allow potentially fraudulent votes to be counted.”

Josh Douglas has written this oped in the Cincinnati Enquirer.

If you read one election law-related piece today, read this from Andrew Cohen.

Buzzfeed: 

Ohio’s state Senate Minority Leader, Democratic Sen. Eric Kearney, complained Tuesday that poor voters are being “pushed” to cast provisional ballots in inner-city Cincinnati, saying people in the traditionally African-American, poor neighborhoods are being “pushed” to cast the alternative ballots that won’t be counted for at least 11 days.

“People are being pushed to provisional ballots unnecessarily when they should be able to vote a regular ballot — the percentage is way up at certain key polling locations,” Kearney told BuzzFeed of inner-city locations in Cincinnati on Tuesday.

A spokesman from Ohio Secretary of State Jon Husted’s office, however, said they had not received any complaints regarding the use of provisional ballots in Cincinnati.

NBC reports.

The Cleveland Plain Dealer reports.

American Lawyer reports.

CNN reports.

This will be a hearing with a tremendous amount of relevance, or very little to those outside the election law world.

The latest from Ohio.

Don Lemon CNN interview, via BuzzFeed.

BuzzFeed reports.

Ned Foley [corrected link]: “For all three of these reasons, it seems problematic for the federal court to grant the relief the plaintiffs now request, even if it were appropriate for the court to reach the merits of plaintiffs’ new claim. Ordinarily, I am hesitant to evaluate the merits of a pending issue before a court until I’ve had the opportunity to read and reflect upon the full briefing of the issue, from all sides to the litigation. In the present situation, there are more briefs to come this week from both plaintiffs and the Secretary of State (and perhaps others), according to a schedule set by the court. But because there has been considerable media attention to this issue over the weekend, I thought it might be helpful (for members of the public trying to understand what is going on) to offer this preliminary analysis of the issue—even though it is necessarily tentative in light of the still-unfolding nature of litigation.”

Ari Berman writes for The Nation.

Andrew Cohen writes at The Atlantic.

AP: ”Voter advocates on Saturday criticized an order by Ohio’s elections chief dealing with the casting of provisional ballots, saying it increases the likelihood that votes could be wrongly rejected…They want the matter clarified by federal judge Algenon Marbley, who gave Husted until Monday to respond.”

More from the Columbus Dispatch.

You can find the latest order in SEIU v. Husted here. As I explained in this post,a federal district court, in the SEIU case on remand from the Sixth Circuit, has expanded the number of provisional ballots which Ohio must count because of poll worker error to include ballots cast by voters in the wrong location (and not just the wrong precinct).

Today the 6th Circuit stayed this order, finding that the plaintiffs were unlikely to succeed on appeal, for two reasons. First, “While poll-worker error may contribute to the occurrence of wrong-place/wrong-precinct ballots, the burden on these voters certainly differs from the burden on right-place/wrong-precinct voters—and likely decreases—because the wrong-place/wrong-precinct voter took affirmative steps to arrive at the wrong polling location. The district court abused its discretion by failing to distinguish these burdens.” Second, the plaintiffs had originally sought this relief and did not get it in the district court and did not get clarification.  The equities counseled against a last minute election change when plaintiffs could have sought this relief sooner.

No word yet on whether plaintiffs will go to the en banc 6th Circuit or the Supreme Court.

The Columbus Dispatch reports.

Another important Ned Foley analysis.

The Cleveland Plain Dealer reports.

I’m keeping my eye on this for reasons discussed at the end of this Slate piece.

On Wednesday I noted that a federal district court, in the SEIU case on remand from the Sixth Circuit, has expanded the number of provisional ballots which Ohio must count because of poll worker error to include ballots cast by voters in the wrong location (and not just the wrong precinct).  The judge issued the order orally and promised a written opinion

Here is the opinion.  No word yet if the state will appeal to the Sixth Circuit—and there may yet be action in the Sixth Circuit’s first ruling in this case.  I’ll have more on this soon.

Lee Rowland:

Yesterday, the Division of Elections issued statewide guidance to all of Florida’s 67 Supervisors of Elections (the local officials that run the election system in each county), detailing exactly how provisional ballots should be counted in the general election. The guidance responds to a letter the Brennan Center and its allies sent to the Division, coupled with direct outreach by the League of Women Voters of Florida, to all 67 county Supervisors.

The Division’s response was clear: If a voter casts a provisional ballot, that ballot will be counted absent evidence of fraud or ineligibility. That means if Florida Supervisors are inundated with provisional ballots — a real concern in light of Florida’s rush to change its voting rules right before a presidential election — and run out of time to individually investigate each one, the tie goes to the voter. That’s absolutely the right call, and offers a model for other states grappling with heaps of provisional ballots.