Breaking News: Sixth Circuit Decides Provisional Ballot Cases, Finds Constitutional Violation in Not Counting Certain Wrong Precinct Ballots

The Sixth Circuit has decided SEIU v. Husted and NEOCH v. Husted in a single opinion.

This is the most important decision in this election cycle, and it represents a major victory for voters’ rights, regardless of party.  It is especially important because this was a very conservative Sixth Circuit panel, and it affirms the idea that Bush v. Gore and Sixth Circuit precedent requires some degree of uniformity and fairness in the counting of ballots.  My worst fears about this case, expressed in this Slate piece, have fortunately not been realized.

The procedural history and issues in this case are complicated, and one aspect of the opinion is being sent back to the lower court for clarification and to make sure an earlier remedy does not create its own “Bush v. Gore problem” (in the 6th Circuit’s words), but the main point is this: it violates the Constitution (equal protection and due process) for the state of Ohio to fail to count ballots cast in the right location but in the wrong precinct solely because of poll worker error.  As I stated in my Slate piece: “This is crazy. Amid all the fights over voter ID laws, purging noncitizens from voter rolls, and early voting, we should at least be able to agree, across partisan lines, on one thing: No one should lose the right to vote because a poll worker can’t tell an odd from an even number.”

Today the panel agreed.  Two excerpts:

The application of Ohio Rev. Code §§ 3505.183(B)(4)(a)(ii) and (B)(4)(b)(ii) to right-place/wrong-precinct ballots caused by poll-worker error effectively requires voters to have a greater knowledge of their precinct, precinct ballot, and polling place than poll workers. Absent such omniscience, the State will permanently reject their ballots without an opportunity to cure the situation. The mere fact that these voters cast provisional ballots does not justify this additional burden; as the district court explained, Ohio law now requires thirteen different categories of voters to cast provisional ballots, ranging from individuals who do not have an acceptable form of identification to those who requested an absentee ballot or whose signature was deemed by the precinct official not to match the name on the registration forms….

Nor has the State shown abuse in the district court’s fashioning of injunctive relief tailored to the identified harm. The State would disqualify thousands of rightplace/wrong-precinct provisional ballots, where the voter’s only mistake was relying on the poll-worker’s precinct guidance. That path unjustifiably burdens these voters’ fundamental right to vote. Recognizing that a prospective remedy could not undo all of the harm occasioned by poll-worker error, the district court crafted a narrow remedy that preserves as much of a miscast ballot as possible.

The state could now try to go to the en banc Sixth Circuit or to the Supreme Court.  But this ruling has got to be right, and I hope the state leaves this alone and does not go further.  I also think this opinion can be very important as precedent in future cases in stopping the most egregious poor treatment of voters going forward.

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