Blackwell scolded on provisional ballot rules

10/21/2004

U.S. District Judge James Carr yesterday strongly chastised Ohio Secretary of State Ken Blackwell for failing to tell state election workers clearly when and how to offer provisional ballots to voters.

Judge Carr said in his ruling that Mr. Blackwell's inadequate instructions "in all likelihood left Ohio's election officials more confused than they would have been if the directive had not issued," and that if election officials had followed the secretary of state's orders they "would have disenfranchised large numbers of voters" in the Nov. 2 presidential election.

In a filing with the court late yesterday, Mr. Blackwell submitted to the court new, more specific, instructions to poll workers about provisional voting for Judge Carr's review.

The argument between the federal judge and Ohio's top election official boils down to the implementation of the Help America Vote Act, passed by Congress in 2002 following the controversial presidential election of 2000, in which thousands of voters in Florida were turned away at the polls and not allowed to vote because poll workers said they were not registered.

Part of the new federal voting act requires poll workers to give provisional ballots to people who show up to vote, but whose names do not appear on voting rolls, or who are declared ineligible to vote by poll workers.

Mr. Blackwell had issued orders to Ohio poll workers on Sept. 16 telling them they were required to verify addresses of voters. Poll workers were told to give provisional ballots to people wanting to vote, but not listed on voter rolls, only if they lived within the precinct where they were attempting to vote.

He also ordered that the provisional ballot would only be counted if the local election board determined later that the voter was eligible to vote at the precinct polling place where the ballot was cast.

The Ohio and Sandusky County Democratic parties sued Mr. Blackwell in the federal court in Toledo on Sept. 27, accusing him of violating federal election laws.

Judge Carr ruled Oct. 14 in favor of the county and state parties, saying that Mr. Blackwell's directives conflicted with guidelines of the federal election statute.

The judge ordered that Ohio voters who show up at the wrong precinct on Nov. 2 can vote in the presidential election as long as they are attempting to vote in the county in which they are registered.

He also ruled that if a person votes outside his precinct, he can vote only for president and other federal offices, not on local, county, or state offices and issues.

In last week's ruling, Judge Carr stated that denying voters the opportunity to cast provisional ballots would erode confidence in the election and lessen incentives to vote.

In yesterday's ruling, Judge Carr took Mr. Blackwell to task again, saying that a new directive Mr. Blackwell proposed for instructing poll workers about provisional ballots is "drastically under-inclusive" and "is every bit as much in violation of [the] Help America Vote Act."

Judge Carr complained in his order that in failing to adequately educate Ohio poll workers about the provisions of the country's new voting act, "Blackwell apparently seeks to accomplish the same result in Ohio in 2004 that occurred in Florida in 2000."

The federal judge continued: "By [failing] to inform election officials that they must permit persons to vote provisionally even when they believe such persons are not eligible to vote, Blackwell's proposed directive would disenfranchise all such individuals. ...

"Ignoring this court's clear command is one thing: It is another thing, and under the circumstances even more blameworthy, to leave Ohio election officials utterly without guidance about how to apply the Help America Vote Act's provisions," Judge Carr wrote in yesterday's ruling.

Carlo LoParo, a spokesman for Mr. Blackwell, said yesterday that Mr. Blackwell has responded to Judge Carr's Oct. 14 order.

He said the secretary of state has also appealed the judge's earlier decision to the U.S. 6th Circuit Court of Appeals in Cincinnati.

In a statement regarding the original court order, the secretary of state said Judge Carr's ruling is a misinterpretation of federal law. Mr. Blackwell added that the procedures suggested by Judge Carr would lead to confusion and fraud.

Mr. LoPara said the secretary of state's office will wait until the federal appellate court rules to determine what instructions will be forwarded to county elections officials.

He declined to say what might happen if that court doesn't issue a ruling prior to the election.

Judge Carr's ruling yesterday, however, ordered Mr. Blackwell to send new directives on provisional voting to Ohio's county election boards after the wording of the directives was approved by the judge.

A U.S. District Judge in Michigan Tuesday issued an order similar to Judge Carr's, ruling that ballots cast in the wrong precinct but in the right city, township, or village must be counted in races for federal office.

State officials there have said they also intend to file an appeal with the U.S. 6th Circuit.

Contact Mike Jones at:

mjones@theblade.com

or 419-724-6096.