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Books by Rick
The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, 2012)
The Voting Wars Website
NOW AVAILABLE from
Barnes and Noble
Election Law--Cases and Materials (5th edition 2012) (with Daniel Hays Lowenstein and Daniel P. Tokaji)
The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003) NOW IN PAPER
Table of Contents
Order from Amazon.com
Order from BarnesandNoble.com
Journal of Legislation Symposium on book
The Glannon Guide to Torts: Learning Torts Through Multiple-Choice Questions and Analysis (Aspen Publishers 2d ed. 2011)
Remedies: Examples & Explanations (Aspen Publishers, 2d ed. 2010)
Election Law Resources
Blogroll/Political News Sites
All About Redistricting (Justin Levitt)
American Constitution Society
Ballot Access News
Brennan Center for Justice
The Brookings Institution's Campaign Finance Page
California Election Law (Randy Riddle)
Caltech-MIT/Voting Technology Project (and link to voting technology listserv)
The Caucus (NY Times)
Campaign Legal Center (Blog)
Campaign Finance Institute
Center for Competitive Politics (Blog)
Center for Governmental Studies
Doug Chapin (HHH program)
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Political Activity Law
Summary Judgments (Loyola Law faculty blog)
Talking Points Memo
UC Irvine Center for the Study of Democracy
UC Irvine School of Law
USC-Caltech Center for the Study of Law and Politics
The Volokh Conspiracy
Votelaw blog (Ed Still)
Washington Post Politics
Recent Newspapers and Magazine Commentaries
Big Money Lost, But Don't Be Relieved, CNN Opinion, Nov. 9, 2012
A Better Way to Vote: Nationalize Oversight and Control, NY Times, "Room for Debate" blog, Nov. 9, 2012
Election Day Dispatches Entry 5: Black Panthers, Navy Seals, and Mysterious Voting Machines, Slate, Nov. 6, 2012
Behind the Voting Wars, A Clash of Philosophies, Sacramento Bee, Nov. 4, 2012
How Many More Near-Election Disasters Before Congress Wakes Up?, The Daily Beast, Oct. 30, 2012
Will Bush v. Gore Save Barack Obama? If Obama Narrowly Wins Ohio, He Can Thank Scalia and the Court's Conservatives, Slate, Oct. 26, 2012
Will Voter Suppression and Dirty Tricks Swing the Election?, Salon, Oct. 22, 2012
Is the Supreme Court About to Swing Another Presidential Election? If the Court Cuts Early Voting in Ohio, It Could Be a Difference Maker in the Buckeye State, Slate, Oct. 15, 2012
Election Truthers: Will Republicans Accept an Obama Election Victory?, Slate, Oct. 9, 2012
Wrong Number: The Crucial Ohio Voting Battle You Haven't Heard About, Slate, Oct. 1, 2012
Litigating the Vote, National Law Journal, Aug. 27, 2012
Military Voters as Political Pawns, San Diego Union-Tribune, August 19, 2012
Tweeting the Next Election Meltdown: If the Next Presidential Election Goes into Overtime, Heaven Help Us. It’s Gonna Get Ugly, Slate, Aug. 14, 2012
A Detente Before the Election, New York Times, August 5, 2012
Worse Than Watergate: The New Campaign Finance Order Puts the Corruption of the 1970s to Shame, Slate, July 19, 2012
Has SCOTUS OK'd Campaign Dirty Tricks?, Politico, July 10, 2012
End the Voting Wars: Take our elections out of the hands of the partisan and the incompetent, Slate, June 13, 2012
Citizens: Speech, No Consequences, Politico, May 31, 2012
Is Campaign Disclosure Heading Back to the Supreme Court? Don’t expect to see Karl Rove’s Rolodex just yet, Slate, May 16, 2012
Unleash the Hounds Why Justice Souter should publish his secret dissent in Citizens United, Slate, May 16, 2012
Why Washington Can’t Be Fixed; And is about to get a lot worse, Slate, May 9, 2012
Let John Edwards Go! Edwards may be a liar and a philanderer, but his conviction will do more harm than good, Slate, April 23, 2012
The Real Loser of the Scott Walker Recall? The State of Wisconsin, The New Republic, April 13, 2012
A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself, Slate, March 30, 2012
Of Super PACs and Corruption, Politico, March 22, 2012
Texas Voter ID Law May Be Headed to the Supreme Court, Fort Worth Star-Telegram, Mar. 13, 2012
“The Numbers Don’t Lie: If you aren’t sure Citizens United gave rise to the Super PACs, just follow the money, Slate, Mar. 9, 2012
Stephen Colbert: Presidential Kingmaker?, Politico, Mar. 5 2012
Occupy the Super PACs; Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power, Slate, Feb. 20, 2012
Kill the Caucuses! Maine, Nevada, and Iowa were embarrassing. It’s time to make primaries the rule, Slate, Feb. 15, 2012
The Biggest Danger of Super PACs, CNN Politics, Jan. 9, 2012
This Case is a Trojan Horse, New York Times "Room for Debate" blog, Jan. 6, 2012 (forum on Bluman v. FEC)
Holder's Voting Rights Gamble: The Supreme Court's Voter ID Showdown, Slate, Dec. 30, 2011
Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United, The New Republic (online), Dec. 6, 2011
Disenfranchise No More, New York Times, Nov. 17, 2011
A Democracy Deficit at Americans Elect?, Politico, Nov. 9, 2011
Super-Soft Money: How Justice Kennedy paved the way for ‘SuperPACS’ and the return of soft money, Slate, Oct. 25, 2012
The Arizona Campaign Finance Law: The Surprisingly Good News in the Supreme Court’s New Decision, The New Republic (online), June 27, 2011
New York City as a Model?, New York Times Room for Debate, June 27, 2011
A Cover-Up, Not a Crime. Why the Case Against John Edwards May Be Hard to Prove, Slate, Jun. 3, 2011
Wisconsin Court Election Courts Disaster, Politico, Apr. 11, 2011
Rich Candidate Expected to Win Again, Slate, Mar. 25, 2011
Health Care and the Voting Rights Act, Politico, Feb. 4, 2011
The FEC is as Good as Dead, Slate, Jan. 25, 2011
Let Rahm Run!, Slate, Jan. 24, 2011
Lobbypalooza,The American Interest, Jan-Feb. 2011(with Ellen P. Aprill)
Election Hangover: The Real Legacy of Bush v. Gore, Slate, Dec. 3, 2010
Alaska's Big Spelling Test: How strong is Joe Miller's argument against the Leeza Markovsky vote?, Slate, Nov. 11, 2010
Kirk Offers Hope vs. Secret Donors, Politico, November 5, 2010
Evil Men in Black Robes: Slate's Judicial Election Campaign Ad Spooktackular!, Slate, October 26, 2010 (with Dahlia Lithwick)
Show Me the Donors: What's the point of disclosing campaign donations? Let's review, Slate, October 14, 2010
Un-American Influence: Could Foreign Spending on Elections Really Be Legal?, Slate, October 11, 2010
Toppled Castle: The real loser in the Tea Party wins is election reform, Slate, Sept. 16, 2010
Citizens United: What the Court Did--and Why, American Interest, July/August 2010
The Big Ban Theory: Does Elena Kagan Want to Ban Books? No, and She Might Even Be a Free Speech Zealot", Slate, May 24, 2010
Crush Democracy But Save the Kittens: Justice Alito's Double Standard for the First Amendment, Slate, Apr. 30, 2010
Some Skepticism About the "Separable Preferences" Approach to the Single Subject Rule: A Comment on Cooter & Gilbert, Columbia Law Review Sidebar, Apr. 19, 2010
Scalia's Retirement Party: Looking ahead to a conservative vacancy can help the Democrats at the polls, Slate, Apr. 12, 2010
Hushed Money: Could Karl Rove's New 527 Avoid Campaign-Finance Disclosure Requirements?, Slate, Apr. 6, 2010
Money Grubbers: The Supreme Court Kills Campaign Finance Reform, Slate, Jan. 21, 2010
Bad News for Judicial Elections, N.Y. Times "Room for Debate" Blog, Jan., 21, 2010
Read more opeds from 2006-2009
Forthcoming Publications, Recent Articles, and Working Papers
The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, George Washington Law Review (forthcoming 2013) (draft available)
A Constitutional Right to Lie in Campaigns and Elections?, Montana Law Review (forthcoming 2013) (draft available)
End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review (forthcoming 2013) (draft available)
Fixing Washington, 126 Harvard Law Review (forthcoming 2012) (draf available)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (forthcoming 2012)( draft available)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, Journal of Law and Politics (forthcoming 2012) (draft available)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review (forthcoming 2012) (draft available)
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, Emory Law Journal (forthcoming 2012) (draft available)
Teaching Bush v. Gore as History, St. Louis University Law Review (forthcoming 2012) (symposium on teaching election law) (draft available)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, Election Law Journal (forthcoming 2011) (draft available)
Citizens United and the Orphaned Antidistortion Rationale, 27 Georgia State Law Review 989 (2011) (symposium on Citizens United)
The Nine Lives of Buckley v. Valeo, in First Amendment Stories, Richard Garnett and Andrew Koppelman, eds., Foundation 2011)
The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in The Funding of Political Parties (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge 2011)
Judges as Political Regulators: Evidence and Options for Institutional Change, in Race, Reform and Regulation of the Electoral Process, (Gerken, Charles, and Kang eds., Cambridge 2011)
Citizens United and the Illusion of Coherence, 109 Michigan Law Review 581 (2011)
Aggressive Enforcement of the Single Subject Rule, 9 Election Law Journal 399 (2010) (co-authored with John G. Matsusaka)
The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 Cornell Law Review 1173 (2010)
Constitutional Avoidance and Anti-Avoidance on the Roberts Court, 2009 Supreme Court Review 181 (2010)
Election Administration Reform and the New Institutionalism, California Law Review 1075 (2010) (reviewing Gerken, The Democracy Index)
You Don't Have to Be a Structuralist to Hate the Supreme Court's Dignitary Harm Election Law Cases, 64 University of Miami Law Review 465 (2010)
The Democracy Canon, 62 Stanford Law Review 69 (2009)
Review Essay: Assessing California's Hybrid Democracy, 97 California Law Review 1501 (2009)
Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar, 61 Florida Law Review 979 (2009)
Introduction: Developments in Election Law, 42 Loyola of Los Angeles Law Review 565 (2009)
Book Review (reviewing Christopher P. Manfredi and Mark Rush, Judging Democracy (2008)), 124 Political Science Quarterly 213 (2009).
"Regulation of Campaign Finance," in Vikram Amar and Mark Tushnet, Global Perspectives on Constitutional Law (Oxford University Press (2009)
More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates (working paper, Sept. 2008)
When 'Legislature' May Mean More than''Legislature': Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35 Hastings Constitutional Law Quarterly 599 (2008) (draft available)
"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries, 102 Northwestern University Law Review 2009 (2008)
Political Equality, the Internet, and Campaign Finance Regulation, The Forum, Vol. 6, Issue 1, Art. 7 (2008)
Justice Souter: Campaign Finance Law's Emerging Egalitarian, 1 Albany Government Law Review 169 (2008)
Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minnesota Law Review 1064 (2008) (draft available)
The Untimely Death of Bush v. Gore, 60 Stanford Law Review 1 (2007)
Category Archives: provisional ballots
Cincinnati Enquirer: “All 55 cases in which a Hamilton County voter voted via an absentee ballot and then voted provisionally must be sent to the Hamilton County Prosecutor’s Office for review of possible criminal charges, according to a directive from that office.Hamilton County Board of Elections Chairman Tim Burke, who is also the County Democratic Party chairman, disagrees. He plans to challenge that opinion during today’s board of elections meeting.”
Michael C. Herron and Daniel A. Smith, “Florida’s 2012 General Election under HB 1355: Early Voting, Provisional Ballots, and Absentee Ballots“
The 2012 General Election was the first major election in Florida held after the passage of House Bill 1355, a controversial election law that among other things reduced the early voting period in Florida and altered the requirements for casting provisional ballots.
By cutting early voting from 14 to eight days and eliminating early voting on the Sunday before the 2012 election, HB 1355 likely contributed to longer early voting lines at the polls, causing in‐person early voting turnout to drop by more than 225,000 voters compared to 2008.
The reduction in opportunities to vote early under HB 1355 disproportionately affected African American voters, insofar as nearly half of all blacks who voted in 2012 cast in‐person early ballots. Although blacks made up less than 14 percent of the Florida electorate as of November/December 2012, they cast 22 percent of all the early votes in 2012, roughly the same percentage as in 2008.
African Americans and Hispanic voters were more likely than white voters to cast provisional ballots and nearly twice as likely to have their provisional ballots rejected.
Quite possibly due to well‐founded fears of long lines at early voting and Election Day polling sites resulting from HB 1355, absentee ballots—a much less reliable form of voting a valid ballot—increased in 2012. Over 28 percent of all ballots cast in 2012 were absentee ballots, nearly six percentage points higher than in 2008. Almost one percent of these ballots were “rejected as illegal” in 2012 by county canvassing boards, and the African American absentee ballot rejection rate was nearly twice the absentee ballot rejection rate of white voters
“Include Me Out: Arizona Seeks to Reduce Provisional Ballots by Cleaning Up Permanent Early Voting Lists”
The Philadelphia City Commissioner issued this report.
UPDATE: A knowledgeable reader writes: “The Philly story – it’s not ‘the’, it’s ‘a’ commissioner who issued the report. In fact, she is the deposed Chairwoman (deposed by a bipartisan coalition) who was deposed the day after the election because of the problems with the pollbooks and her refusal to print and distribute additional provisional ballots to address the problem.”
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.”
A reader writes: Obama Ohio lead has gone up .8 points overall just with (much? Some?) of provisionals being counted a couple of weeks later… can you imagine if Obama had been down like .5 points in a decisive Ohio pre-provisionals?
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:
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.
Arizona Republic: “The race for the 2nd Congressional District had been too close to call for 10 days, but on Friday an Arizona Republic analysis determined that McSally would not be able to muster enough votes from the remaining uncounted ballots to surpass the thin lead Barber had held in recent days.”
“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.
Arizona Republic: “Disputed ballots in the contentious southern Arizona congressional race between Democratic U.S. Rep. Ron Barber and GOP opponent Martha McSally will be added to the final tally, attorneys agreed Tuesday. But the votes will be set aside, so they are not lost among the rest of the ballots, in case attorneys decide to challenge them later.”
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.”
Yesterday I flagged a piece by Andrew Cohen about a court hearing related to the latest provisional ballot dispute in Ohio. I called it a must-read, but I’ve now heard from a reader whom I greatly respect that there’s another side to this story, and that there’s a lot of nuance left out of this. So caveat emptor and I hope to blog more about this at some point.
If you read one election law-related piece today, read this from Andrew Cohen.
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.
The Cleveland Plain Dealer reports.
This will be a hearing with a tremendous amount of relevance, or very little to those outside the election law world.
Don Lemon CNN interview, via BuzzFeed.
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.”
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.
Newsmax: “With the presidential election expected to hinge on Ohio, the state’s former secretary of state, GOP stalwart Kenneth Blackwell, is warning that a little-known change in the Buckeye State’s absentee-ballot process could lead to a ‘nightmare scenario.’”
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 Identity of Provisional Voters: Private or Public? (An Issue That Might Emerge Early in Overtime)”
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.
AP reports. “Neither the state nor the voters’ advocates could say immediately whether they would appeal.”
EL@M: “Judge Marbley, federal district judge in Ohio, announced from the bench a two-part ruling: (1) based on the federal Constitution, he is extending his “right location, wrong precinct” injunction to cover provisional ballots cast in the wrong polling location (as long as they are cast in the same county in Ohio); and (2) for this year’s election, he is rescinding the NEOCH consent decree insofar as applied to missing names or signatures (or other “ballot affirmation errors”) on provisional ballot envelopes. He indicated that a written opinion will follow in the next day or two.”
More later as I’m on the road.
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.
The briefing is complete in the Ohio early voting case before Justice Kagan (and presumably the Supreme Court). The Court can rule at any time, and I expect something this week. Here’s a post discussing the role of Bush v. Gore in the case. I’ve written a piece on this case which should appear later today. Stay tuned.
We are still waiting to hear if Ohio AG DeWine will go to the Sixth Circuit, to the Supreme Court, or give up in the Ohio wrong precinct case (subject of my Slate commentary here). This is the case I’ve called the most important of this election season. Stay tuned on this one too.
More on Ohio’s voting wars from Jonathan Adler.