Ohio Supreme Court Orders That Certain Provisional Ballots Not Be Counted

The Ohio Supreme Court has issued this opinion, upholding a challenge to Secretary of State Jennifer Brunner’s ruling that provisional ballots should be counted where they don’t include both the voter’s printed name and signature, and where one or both are in the wrong place. The case, State ex rel. Skaggs v. Brunner, was originally removed to federal court but ultimately sent back to state court on order of the Sixth Circuit. The decision not to count these provisional ballots could affect the result of the still-undecided race for Ohio’s 15th Congressional District.
It’s possible that this won’t be the last word on the matter. The opinion turns in part on a directive issued by the Secretary of State (Directive 2008-101) pursuant to a federal court order in another case, Northeastern Ohio Coalition for the Homeless v. Brunner (“NEOCH“). Although I’ve only had a quick chance to read through the Ohio Supreme Court’s opinion in Skaggs, it looks to me that there’s at least a plausible argument that this opinion isn’t consistent with the directive, at least as to some of the disputed provisional ballots (those with a printed name but no signature). If that’s right, we could see a motion in the NEOCH case seeking enforce the prior federal court order by requiring that the provisional ballots be counted despite the Ohio Supreme Court’s opinion. Even though removal Skaggs was held to be improper by the Sixth Circuit, it seems to me that the federal court in NEOCH would have power to effectuate its order in this way, if there is a conflict between the Skaggs opinion and the NEOCH order

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