COLUMBUS - Ohio Secretary of State Ken Blackwell - smarting from a legal dressing down a day earlier by U.S. District Judge James Carr of Toledo - claimed yesterday the judge is "legislating from the bench and in this case the judge is legislating from the beach."
Mr. Blackwell didn't respond to Judge Carr's specific and detailed ruling that he had failed to follow the Help America Vote Act approved by Congress in 2002. Instead the secretary of state claimed Judge Carr "has been in Florida all this time."
"My folks conference through his office, but we didn't have any oral presentations because he was in Florida,'' said Mr. Blackwell, the state's chief elections officer.
Later in the interview, Mr. Blackwell said he didn't know if Judge Carr was on a Florida beach. "I meant that figuratively,'' he added.
A person in Judge Carr's office said he has been in hearings this week in Toledo. And, a reporter for The Blade saw the judge in his chambers twice Wednesday, the day he issued his ruling that Mr. Blackwell's inadequate instructions to poll workers about provisional ballots on Nov. 2 "in all likelihood left Ohio election officials more confused" and if those instructions had been followed they "would have disenfranchised large numbers of voters."
Reached last night, Judge Carr would not comment on Mr. Blackwell's allegations, saying it would be "highly improper to make any comment on a pending case."
Mr. Blackwell spoke on the same day his office filed its arguments appealing Judge Carr's decision on provisional ballots to the Cincinnati-based federal appeals court.
Judge Carr has ruled that according to the country's new voting law, people who show up to vote on Nov. 2 but whose names are not on voter rolls must be offered a provisional ballot to vote on. If it is later determined that the voter is registered to vote in the county the vote was cast, then the voter's choices for president and other federal offices will be counted.
Mr. Blackwell last month instructed Ohio poll workers not to give provisional ballots to people who could not prove they lived in the precinct they were attempting to vote in.
"I want everybody to understand that it's not just enough to say you want everybody to vote. You have an ethical responsibility to help people understand how to make sure their vote is counted,'' Mr. Blackwell said.
Democrats sued Mr. Blackwell in federal court, saying Mr. Blackwell's directive to county boards of elections would deprive thousands, especially minorities and the poor, the right to vote.
Judge Carr, an appointee of President Bill Clinton, and Mr. Blackwell, who is seeking the GOP nomination for governor in 2006, agreed to two versions of an order to county boards of elections on provisional ballots.
If the appeals court sides with Mr. Blackwell, voters will be told their entire ballot could not be counted if they vote in the wrong place.
If the appeals court upholds Judge Carr's decision, voters will be told that only their votes in federal races will be counted if they vote in the wrong place.
Mr. Blackwell said Judge Carr unfairly chastised him for ruling that Ohio's provisional ballot law and practices were not in compliance with the federal Help America Vote Act.
"This guy has a political agenda. It is very clear and he is in cahoots with those with a political agenda; just answer the question. Why does Jesse Jackson fly into the state of Ohio and claim somehow that Ohio's law disenfranchises?'' he said.
In Wednesday's ruling, Judge Carr singled out Mr. Blackwell as violating the federal voting law that was put in place after the 2000 presidential election in Florida where thousands of mostly black voters were denied the right to vote.
The judge said that in failing to adequately educate Ohio poll workers about the new law and its call for provisional ballots, "Blackwell apparently seeks to accomplish the same result in Ohio in 2004 that occurred in Florida in 2000."
In a related but separate ruling, Judge Carr sided with Mr. Blackwell, saying the secretary of state's directive to boards of elections that first-time voters must show identification before voting in the election was proper.
The decision stems from a lawsuit filed Oct. 5 in U.S. District Court alleging that the secretary of state violated the Constitution and the Help America Vote Act.
The complaint, which was filed by the Ohio League of Women Voters and a coalition of civil rights and community organizations, asked the court to change the directive that says a first-time voter who didn't fill out driver's license or Social Security number information on mailed-in registration forms must show proof of identification before their vote will be accepted.
Judge Carr said the requirements by Mr. Blackwell were not unreasonable, would affect a small number of voters, and would guard against voter fraud and misconduct.
Ohio Republican Party Chairman Bob Bennett said the ruling was a ''major step in preventing Democratic-front groups from pursuing fraudulent election activities."
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