Important District Court Opinion, Relying on Bush v. Gore, Issued in Ohio Hunter Litigation

You can read the 93-page opinion at this link. This is a case on remand from a Sixth Circuit case that Ned Foley called “the most significant application” by a court of Bush v. Gore.  I fully expect this case to be back before the Sixth Circuit, and potentially before the Supreme Court.

In a nutshell, the issue is this: the Board of Elections in Hamilton County, Ohio counted some ballots which, due to poll worker error, were cast by voters in the wrong precinct but at the correct location (some locations have multiple precincts).  Does the Equal Protection Clause or Due Process clause of the U.S. Constitution require that the Board, having done so, also count other ballots cast by voters in the wrong precinct but at the correct location?  The district court said yes.

The problem of poll worker error is one which has not gotten enough attention and needs to get more attention.  This excerpt from the opinion poignantly illustrates the issue:

In at least one instance, a poll worker appeared to be unable to distinguish between even and odd numbers. (Hr’g Tr. (Hampton) 2-202 to 2-205.) When asked whether the house number 798 was even or odd, the poll worker responded:
A. Odd.
Q. And why do you think that’s odd? I’m sorry. Why do you think her address is an odd address?

A. Because it begins with an odd number.

Q. It starts with an odd number?

A. Yes. Nine is an odd number. Eight’s even.
. . .
Q. . . . So on Election Day, if somebody came in with an address 798 and you had two ranges to choose from, you would choose the odd for them?

A. Yes.

Q. Okay. And is that how you did it for all the ballots that you looked up on Election Day?
A. To determine if they were even – yes.Q. To determine if they were even or odd, you looked at the first digit of the address?

A. No. I looked at the whole address.

Q. And you chose however many – if there were more odds than even numbers, it would be an odd address?
A. Yes.

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