6th Circuit Turns Down En Banc Consideration of OH Provisional/Absentee Balloting Case

Back on September 13 I flagged a 2-1 decision of the 6th Circuit mostly rejecting a challenge to Ohio provisional absentee voting rules. (This is the one that featured the strong dissent from Judge Keith).

Plaintiffs sought to have the entire 6th Circuit rehear the case, and now that request has been rejected, with a promise of written opinions to follow.  The plaintiffs are now considering their Supreme Court options (which I’d rate very low).  Statement from plaintiffs’ counsel:

The court has ensured that thousands of registered Ohio voters—whose eligibility county elections boards do not question—will be disenfranchised over trivial errors and omissions on ballot forms, like missing a zip code, writing a name in legible cursive rather than in block letters, etc.

The court has also tolerated a situation in which large, urban counties with the biggest percentages of minority voters are disenfranchising voters over trivial ballot-form errors and omissions—when the small, white, rural counties have been exposed as not doing so. For example, if you inadvertently leave your zip code off of your form in Cuyahoga, Franklin, Hamilton, Stark, or Lucas counties, you will be disenfranchised even if the board has no doubt regarding your eligibility, while Meigs and other small counties will count that same vote. How is that remotely fair? The court swept these undisputed, inconvenient facts in the record under the rug and did not even discuss them. The appeals court’s decision defies Bush v. Gore and its own prior precedent, and neuters the Voting Rights Act as well, which prohibits the disparate racial impact these practices represent.

The homeless coalitions do not understand how a judge—whose House-speaker husband the case accuses of leading racial discrimination, and constitutional and voting-rights violations—can feel free to participate in a court decision denying voting rights, or how this is the impartial justice our system promises.

Ohioans need to be incredibly vigilant when filling out absentee and provisional-ballot forms, because Secretary Husted is playing a game of disenfranchisement ‘gotcha’, rather than showing a devotion to counting every legitimate vote.

 While we are studying our Supreme Court options, hopes for affected Ohio voters in this close presidential election may well be lost. Voters may never learn that their ballots were not counted.

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