The following is a guest post from Ned Foley:

The Sixth Circuit’s Distinction between Absentee and Provisional Ballots: Why?

One thing I don’t understand about the majority opinion in yesterday’s NEOCH decision is the distinction that the majority draws between absentee and provisional ballots for the purpose of applying Anderson-Burdick balancing to the invalidation of ballots for a voter’s clerical error in writing the voter’s birthdate or address on the envelope in which the ballot (absentee or provisional) is submitted.

The majority finds an Equal Protection violation under Anderson-Burdick for the invalidation of ABSENTEE ballots for this type of clerical error, but rejects the equivalent Equal Protection claim with respect to the invalidation of PROVISIONAL ballots for the identical type of clerical error.  This disparate disenfranchisement of comparably situated voters (by the Sixth Circuit majority) itself invites Equal Protection inquiry under a Bush v. Gore type of analysis.

What does the Sixth Circuit majority say to justify this distinction?  Not much; it doesn’t really address the comparison of absentee and provisional ballots directly, but rather just analyzes each separately in turn under its application of the Anderson-Burdick balancing test.

The majority seems to think that process of verifying provisional ballots, to make sure that the provisional voter is registered and authentic (ID matches, so that the person casting the ballot is really the person entitled to cast it) justifies disqualifying a provisional ballot if the voter accidently writes the wrong information for the voter’s birthdate or address—for example, accidently writing the current date rather than one’s birthdate.  The relevant sentence of the majority’s opinion, on page 22, is this:  “Ohio’s important interests in provisional-voter registration and identification eclipse the small burden of accurately completing the two fields—a burden that actually impacts just a few hundred voters each election, an impact wholly in their own control.”

But then the very next sentence is: “However, we agree with the district court that Ohio has made no such justification for mandating technical precision in the address and birthdate fields of the absentee-ballot identification envelope.”  Ohio’s defense was the same in both contexts: the need to make sure that the person submitting the absentee ballot was in fact registered and authentically the person in whose name the ballot is being cast.  But here the majority rejects the defense as theoretical and speculative, not grounded in actual evidence of a problem.  As the majority puts it, “some level of specificity is necessary to convert that abstraction into a definite interest for a court to weigh.”  (Id.)  But why wasn’t that point equally applicable to the same defense regarding provisional ballots?

It is as if the majority opinion believes that provisional ballots are inherently more suspicious than absentee ballots, enough so that an innocent clerical mistake is enough grounds to toss the ballot out, thereby disenfranchising the voter.  But this position makes no sense to me.  The constitutional claim in the case, as the Sixth Circuit majority itself defines it, concerns the invalidation of the ballot solely because of the clerical error regarding the birthdate—the mistaken writing of the current date, for example (as I discussed in a previous post on this case before it reached the Sixth Circuit).  But if this is the sole reason for rejecting the provisional ballot, then the election officials already know that the provisional voter’s registration status has been confirmed, and that the provisional voter’s required ID number (driver’s license or last 4 digits of SSN) has dispelled doubt about the voter’s authenticity.  In this situation, there is no need to disqualify the ballot just because of the inconsequential clerical error regarding the birthdate.  As the majority acknowledges elsewhere regarding ABSENTEE ballots, the state’s justification for “requiring mail-in voters to complete the address and birthdate fields” as information that potentially aids election officials in the verification process is not an adequate justification “to reject ballots containing technical errors” when those errors do not defeat the ability of officials to verify the ballot in question (slip op. at 24; emphasis in original).  The very same point applies equally to provisional ballots, but the Sixth Circuit majority just seemed to miss it in that context.

There is some language in the Sixth Circuit’s majority opinion that suggests that it might make a difference to the Anderson-Burdick balancing that numerically fewer provisional ballots are rejected each election because of these clerical errors than absentee ballots 620 provisional ballots, compared to 1712 absentee ballots, in 2014 & 2015 (slip op. at 21).  But that numerical difference would seem irrelevant under the way that the Crawford “plurality” — the Justice Stevens opinion — understood Anderson-Burdick balancing (in contrast to Justice Scalia’s alternative approach in his Crawford concurrence), and the Sixth Circuit majority acknowledges the Stevens opinion in Crawford to be “controlling”.  In this regard, the Sixth Circuit majority refers to the Anderson-Burdick claims before it as “facial challenge[s]” (slip op. at  21), but I had understood the Anderson-Burdick claims in this case – in contrast to Crawford itself – to be as-applied challenges on behalf of the subset of voters represented by the plaintiffs (the homeless and other specifically disadvantaged groups).

This leads me to wonder whether, even after yesterday’s decision, there is still the possibility of a valid AS-APPLIED challenge on behalf of any provisional voter whose ballot is rejected solely because of a clerical error regarding a birthdate or address—and that the upshot of the decision is that the equivalent rule regarding absentee ballots is facially invalid, and thus absentee voters do not need to seek an as-applied remedy for this kind of disenfranchisement, whereas provisional voters still do.  Even so, I still don’t understand the basis for the Sixth Circuit majority’s distinguishing between absentee and provisional voters, even for purposes of the kind of claims that the majority characterized as equivalent “facial challenge[s].”  But at least that would not rule out the possibility of protecting provisional voters from disenfranchisement solely because of a clerical error that the Sixth Circuit majority itself defines as inconsequential to verifying the voter’s eligibility and identity.

I welcome hearing from others about their thoughts on how best to understand the Sixth Circuit’s distinction between provisional and absentee ballots with regard to rejecting them for clerical errors.