About Those Wrong Precinct Provisional Ballots at Issue in Sixth Circuit Case…

Yesterday’s Sixth Circuit ruling, requiring the counting of provisional ballots cast by voters at the right location but at the wrong precinct, is a big deal.  But the provisional ballot issue is not entirely resolved.  We still don’t know if OH AG DeWine will appeal on this issue to the Sixth Circuit en banc or to the Supreme Court (SOS Husted did not appeal this aspect of the case, and actually won on the issue he appealed on).

But putting that aside, a knowledgeable reader points out another issue:  many wrongly cast provisional ballots are not covered by this order, because this covers only those cast at the right polling location. The reader writes:

You said in your Slate piece: “This ‘right church, wrong pew’ problem with precinct ballots was a big problem in 2008, when over 14,000 such ballots were cast.”

The 14,000+ number is all wrong precinct ballots, not just those in the right church.  It’s possible that only about 35% of all wrong precinct ballots will now be counted because of this decision.  In 2008, 34% of Cuyahoga County’s wrong precinct ballots were cast in the right polling place while 32% were cast in the right polling place in Hamilton County.  Source: Final Report 2008 – 2009 Ohio Election Summit and Conference, Brennan Center.

The 6th Circuit’s decision today only ensures that right church ballots are counted and leaves open a window for wrong church ballots to be counted (but they say in Footnote 6 that that issue wasn’t before them this time).

I appreciate the clarification.  It will be interesting to see if SEIU now asks for a broader order covering additional wrong precinct ballots.  Here’s what fn. 6 of yesterday’s opinion says: “Our ruling does not preclude the SEIU appellees or others from seeking broader relief for pollworker-induced wrong-place/wrong-precinct provisional ballots upon a showing that Ohio’s law unconstitutionally burdens those voters’ rights. As those issues are not before us, we express no view on their merits.”

It will be important to get clarification on this issue before Election Day, suggesting the case may not be over.



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