Republican George Sarantou cleared the first hurdle Monday toward his goal of overturning the Nov. 2 election for Lucas County commissioner when a judge ruled he and his lawyers could examine about 4,000 envelopes that held provisional ballots.
Judge Stacy Cook rejected the motion for a protective order from the Lucas County Board of Elections on its claims that the information on the provisional ballot envelopes was privileged and not available for Mr. Sarantou in his contest of election lawsuit.
The judge then set Jan. 31 for the start of a hearing on the merits of whether the Nov. 2 election, which Democrat Carol Contrada won, was mishandled.
The board of elections is to meet Tuesday and could vote to appeal Judge Cook's ruling to the Ohio Supreme Court. The county contends that federal and state law and a directive from former Secretary of State Jennifer Brunner prohibit public release of the provisional ballot envelopes.
The envelopes, which contained ballots that were then scanned into electronic voting machines, bear voter information that Mr. Sarantou hopes will show that some provisional ballots should have been rejected.
Judge Cook heard arguments from lawyers on both sides of the question Monday. She noted that the information Mr. Sarantou seeks, such as whether a voter's ballot was counted, is available for people who vote in the traditional way and should also be available about people who vote by provisional ballot.
"I'm not seeing statutory language where provisional voters have a different right than voters who go through the regular process," Judge Cook said, calling it legally "uncharted waters."
Kevin Pituch, an assistant prosecuting attorney for Lucas County representing the board of elections, said the board has released thousands of documents to Mr. Sarantou but was concerned by language in the federal and state laws that seemed to give the right of confidentiality to provisional voters.
Fritz Byers, Mr. Sarantou's lawyer, said Mr. Sarantou was pleased with the judge's ruling.
"We are looking forward to moving forward now in reviewing the evidence so that everyone can be satisfied about what happened in this important election," Mr. Byers said.
Stephen Hartman, a lawyer for Mrs. Contrada, said she is not displeased the information is going to be shared with Mr. Sarantou and did not join the board of elections in seeking the protective order.
"We just want to get the case moving," Mr. Hartman said.
Mr. Sarantou, a private financial adviser and a Toledo city councilman, was the unofficial winner on Election Night over Mrs. Contrada by 1,376 votes. But when some 4,000 provisional ballots were counted and certified Nov. 22, Mrs. Contrada emerged the winner by 193 votes.
Mrs. Contrada, a lawyer, has resigned her former office of Sylvania Township trustee and has taken the oath of office as a county commissioner, already voting in two meetings of the board of commissioners.
Provisional ballots may be used when a voter's name does not appear in the poll books for his or her precinct. Sometimes voters' names aren't in the poll books because they have recently moved into the precinct or they married and changed their names. A new provision allows a provisional vote cast in the wrong precinct to be counted if it can be attributed to pollworker error.
Mr. Sarantou filed suit Dec. 13, claiming "irregularities, errors, frauds, and mistakes," in the counting of provisional votes.
The suit asks the court to either declare Mr. Sarantou the winner in the election or order a new election.
Mrs. Contrada's lawyers have filed a motion to dismiss the case.
Contract Tom Troy at: email@example.com or 419-724-6058.