October 23, 2004

BREAKING NEWS: Sixth Circuit Reverses Provisional Ballot Ruling Out of Ohio

The A.P. reports here that a Sixth Circuit panel has reversed the district court decision requiring Ohio elections officials to count provisional ballots cast in a precinct other than the precinct at which a voter was registered. The A.P. story indicates as well that the Democrats have decided not to appeal. The Sixth Circuit moved very quickly; it had set Tuesday as a potential date for oral argument if necessary, but it acted before argument issuing its opinion late Saturday. The opinion does not appear to be posted on line, but the A.P. story does not indicate there were any dissents. Two of the judges on the panel were Reagan appointees, and one was a Clinton appointee.

This is an extremely significant event. Of all the potential post-election litigation scenarios, I have pegged provisional voting controversies as the most likely to lead to such litigation, and Ohio provisional balloting litigation at the very top of the list because I expected this contentious litigation to be ongoing through Election Day and beyond. The Democrats made a good choice for the electoral system (though not necessarily for their partisan interests) by deciding not to appeal---sometimes it is more important for the law to be certain than to be right, and this is one of those times.

This does not mean that other circuit courts won't reach contrary decisions or that someone won't eventually try to get the Supreme Court involved. But certainty in Ohio (and likely Michigan, which is also in the 6th Circuit) should help lessen the possibility of post-election problems.

Posted by Rick Hasen at October 23, 2004 08:49 PM