Federal appeals court: Wrong precinct table in a multiprecinct voting place cannot be unilaterally disqualified

10/12/2012

COLUMBUS — The ballot of last resort cast by a would-be voter directed by a poll worker to the wrong precinct table in a multiprecinct voting place cannot be unilaterally disqualified, a federal appeals court ruled today.

A three-judge panel of the Cincinnati-based 6th Circuit Court of Appeals upheld a preliminary injunction issued by a lower-court judge to prevent county boards of elections from refusing to count provisional ballots cast at the wrong precinct through no apparent fault of the voter.

“The application of [state law] 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,’’ the court ruled. “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,” it added. “As the district court explained, Ohio law now requires 13 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.’’

Attorney General Mike DeWine was reviewing the decision, and no decision about possible appeal has been made, his office said. He has the option of asking the full 6th Circuit bench to hear the case or to go directly to the U.S. Supreme Court.

In cases that were brought by the Service Employees International Union and the Northeast Ohio Coalition for the Homeless, the court dismissed the state’s suggestion that such a ruling could lead voters to intentionally vote in the wrong precincts or to other voting fraud.

“Barring substantial numbers of recalcitrant voters insisting on casting wrong-precinct votes — again, a phenomenon not supported by the record or logic — the district court’s limited remedy should not burden poll workers with longer lines or tax county boards with an unmanageable number of ballot verifications after Election Day,’’ the 6th Circuit ruled.

Although it upheld the lower U.S. District Court’s injunction against the state as it applied to the wrong precinct provisional ballot, it reversed another of the court’s conclusions that the state must count provisional ballots with technical deficiencies such as a missing or misplaced printed name or signature.

The SEIU had cited statistics that, in 2011, county boards of elections had rejected 568 provisional ballots for such problems.

The lower court also had attributed these problems to poll worker error, “because it is the poll worker’s duty to ensure that provisional ballots are cast with a validly completed ballot envelope and affirmation.”

The 6th Circuit, however, found that Ohio law doesn’t put poll workers in charge of quality control of provisional ballots, and that such errors often occur because of the voters’ failure to follow the form’s “rather simple instructions.’’

It sent that section of the case back to the lower-court judge for further proceedings.

Mr. Husted had appealed only the section of the lower court’s ruling dealing with the ballot deficiencies.

“This is an election integrity issue,’’ he said. “Under Ohio law, a voter’s legal signature is one of the primary means by which county boards of elections can verify voters and legally cast ballots, whether you are talking about provisional ballots, absentee ballots, poll books, or petitions.’’

Mr. DeWine, also a Republican, had appealed the entire lower-court ruling, including the so-called “right church, wrong pew’’ issue, to the 6th Circuit.

State Rep. Kathleen Clyde (D., Kent) urged him not to appeal the decision again.

“Today is yet another victory for voting rights,’’ she said.

The state recently asked the Ohio Supreme Court to hear its appeal of a separate case requiring the state to allow in-person early voting during the final three days before the election.