COLUMBUS --A federal court judge sided Tuesday with a homeless coalition and said Ohio must count provisional ballots cast on Nov. 6 that lack or contain incomplete voter identification information.
Secretary of State Jon Husted promptly said his office would appeal the ruling to the Cincinnati-based U.S. 6th Circuit Court of Appeals.
"Secretary Husted will appeal today's ruling because it allows protentially fraudulent votes to be counted," said Husted spokesman Matt McClellan. "By eliminating the ID requirment on provisional ballots, the ruling is contrary to Ohio law and undermines the integrity of the election."
On Saturday, county boards of elections will begin to count roughly 200,000 provisional ballots, the ballots of last resort cast on Election Day by voters whose eligibility was in question for a variety of reasons. Voters are given 10 days after the election to correct, if possible, the problem with the ballot.
The official count must be completed by Nov. 27.
At issue in the lawsuit was a section of the form that Mr. Husted released as part of the directive that ordered elections boards to reject provisional ballots that are incomplete, and required the voter, rather than the poll worker, to record the form of ID being used, said Subodh Chandra, one of the lawyers who filed the motion.
U.S. District Court Judge Algenon Marbley ruled Tuesday that the last-minute voting directive issued the Friday before the election was confusing and unfair to voters and violated a previous decree that made poll workers responsible for that information, as well as Ohio and constitutional law.
The judge's motion orders that provisional ballots with incomplete information cannot be rejected unless the Secretary of State can show that poll workers complied with their statutory duty to specifically record that the voter failed to provide ID, specified what form of ID the voter must bring within 10 days, and then if the voter failed to bring ID in 10 days. The motion also orders Mr. Husted to issue a compliant directive by noon on Friday and that he provide the proposed language for that directive by noon today.
The motion was filed by attorneys for the Northeast Ohio Coalition for the Homeless and the Service Employees International Union Local 1199 — who previously sued over provisional ballot language — and this time asked the judge to clarify and rule on the directive.
Nearly twice as many provisional ballots were cast on that day that have yet to be counted.
The Court opined Tuesday that Mr. Husted imposed a burden on the voters by shifting the duty to them.
"The General Assembly made the policy judgment to place the duty to record the identification of a provisional voter with a trained election official," the judge wrote. "The Secretary may not second guess that decision. If the Secretary could arbitrarily shift any duties of an election official to an individual voter, the Secretary could ensure no error would ever be the fault of a poll worker simply by reassigning all of the poll worker's duties to the voter. This result is not contemplated by Ohio law or permitted by the Constitution."