OHIO

Litigation casts pall as early vote approaches

Provisional ballots, hours still at issue

9/23/2012

COLUMBUS — Ohioans will begin casting their first ballots in just nine days, but the sand under their feet continues to shift as to when they can cast those ballots and which ones will be counted after the polls close on Nov. 6.

Ohio has become a battleground for pre-election litigation befitting a bellwether state that could again be a deciding factor as to who will reside in the White House for the next four years.

Federal court rulings have overturned state law on early voting in the days immediately preceding the opening of polls and on the counting of last-resort provisional ballots. Both decisions are under appeal, so the rules could again change even after voting begins on Oct. 2.

“At some point you’ve got to get on with the business of holding an election," said Catherine Turcer, of the watchdog group Common Cause.

“Voters need to know when to vote, and we just need to move on."

Knowing that every vote cast — or not cast — could be the difference between victory and defeat, lawsuits from all sides of the political spectrum have been filed in attempts to force a purge of voter registration rolls, expand early voting schedules, and prevent the disqualification of certain provisional ballots.

“My job is not to set the law," said Secretary of State Jon Husted, Ohio’s top elections official.

“I would prefer not to make any rules. The law should be the guide so that decision-making is consistent and clear in how we run elections.

“What the court cases do is throw in an element of uncertainty that can lead to some cost increases [and] put an extra burden on local boards and what we do in administering elections," the Republican said. “It creates confusion that can make the elections process run less smoothly than we hoped."

If nothing else, the multiple lawsuits could lay the groundwork for postelection litigation similar to that in Florida in 2000 should the vote count on election night prove to be extremely tight. “We see these lawsuits now. If it’s close, we’ll see these lawsuits later," said Edward “Ned” Foley, an Ohio State University law professor specializing in election law.

By now, every voter who was registered in Ohio as of Aug. 6 should have received an application in the mail for an absentee ballot, a concession from Mr. Husted that resulted from yet another partisan battle a year ago. A second mailing is expected in early October to cover those who registered after Aug. 6.

Under Ohio law, voters may begin casting absentee ballots by mail or in person at designated sites on Oct. 2. In Lucas County, that site is Summit Plaza on the campus of the Greater Toledo YMCA, 1500 N. Superior St., in Toledo.

For now, Mr. Husted’s directive setting expanded weekday hours for early voting up to, but not including, the final three days before the Nov. 6 election remains in place. Generally, it provides for expanded weekday hours but no weekend voting.

A federal judge, acting on a lawsuit by President Obama’s campaign and other Democrats, recently rejected a state law that prohibits early voting by nonmilitary voters on the Saturday, Sunday, and Monday immediately preceding the election.

The judge wrote that he “anticipates" that the secretary of state would issue a new directive setting a uniform schedule statewide accommodating voting on those three days.

But Attorney General Mike DeWine promptly appealed that ruling to the Cincinnati-based 6th U.S. Circuit Court of Appeals, and Mr. Husted has yet to issue the directive that the judge “anticipates."

Mr. Husted said last week that he will issue a directive affecting those days, but he declined to say when he will do it and what it will entail.

“The rules are going to be more fair and uniform in this election than they have ever been in Ohio history, at least since early voting started … " he said. “Voters in all 88 counties will be treated the same. Days and hours they have to vote [and] absentee ballots will work the same in all 88 counties. That’s certainly an achievement. The most high-profile lawsuit actions have had to do with Ohio law."

Ms. Turcer said not everyone is comfortable with voting by mail.

“In 2008, many people took advantage of that three-day window before the election," she said. “In-person early voting is very different from voting by mail. You’re certain the ballot was cast. Elections are one time when everyone is equal and everyone’s vote counts."

A separate federal lawsuit still pending seeks to overturn both state law and Mr. Husted’s directive, potentially opening the door for each county board of elections to set its own early voting hours on additional weekends during the 35-day early voting period.

Yet another was filed by a conservative group accusing Mr. Husted of failing to purge from Ohio’s registration rolls would-be voters whose addresses no longer match U.S. Postal Service files.

Mr. Husted last week said he will mail letters to 70,000 people who have apparently moved out of state, requesting that they voluntarily remove their names from the registration rolls here.

He has noted that he can’t legally remove those people from the Ohio rolls until they fail to vote in two federal elections.

Meanwhile, the 6th Circuit is expected to hear arguments Oct. 1 on the state’s appeal of a separate federal ruling that, among other things, required the state to count provisional ballots, the ballots of last resort, if they were cast at the right multiprecinct polling place but at the wrong precinct table.

Mr. Foley noted that partisan battles over the counting of ballots date back to the early days of the United States when James Madison once questioned whether an election won by denying legitimate votes was one worth winning.

“I think that’s a question worth asking today," Mr. Foley said. “Should you feel good about a win and should you really feel entitled to a win if the way in which you win is by disqualifying votes of valid voters? They went to the polling place. They had the right ID. They just by virtue of a mistake — and it might not have been their mistake. It might have been the poll worker’s mistake — they ended up with the wrong piece of paper."

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.