COLUMBUS, Ohio — A federal court ruling this summer will decide the constitutionality of Ohio laws for counting provisional ballots, and whether some of those ballots — thousands of them, potentially — should be counted in this fall’s presidential election.
The case revolves around a 2010 legal agreement, called a consent decree, that ensures certain defective provisional ballots would be counted if a poll worker’s mistake is to blame.
In the 2011 general election, more than 1,500 provisional ballots were counted statewide on account of the consent decree, according to the secretary of state’s office. That number likely would increase in this fall’s presidential election.
Republican Secretary of State Jon Husted and others, however, argue the consent decree should be voided because it conflicts with existing Ohio law that does not allow defective provisional ballots to be counted, regardless of poll worker error.
Service Employees International Union Local 1199, the Ohio Democratic Party and a local homeless coalition are on the other side, claiming the consent decree’s safeguards are essential to protecting the voting rights of poor people and others who use provisional ballots. Without these protections, Ohio laws for counting provisional ballots — ballots cast when a voter’s eligibility is in question — would be unconstitutional, they argue.
“We need to get this cleared up so people are not disenfranchised,” said Don McTigue, a lawyer representing the Ohio Democratic Party. “That’s why this is a big deal.”
The case is before U.S. District Judge Algenon Marbley, who said during a hearing in Columbus on Wednesday he will decide the case before special elections throughout the state take place on Aug. 7.
“There’s nothing more important than the franchise and the right to vote,” Marbley said during the hearing. “I grew up in the Jim Crow south and still remember the various mechanisms that were used to disenfranchise voters.”
Caroline Gentry, a lawyer fighting to preserve and expand the consent decree, said a Hamilton County judicial race recently was overturned once provisional ballots were counted — proof that every single vote is important. “If that happened in a small judicial court race, it could happen again in a large presidential election,” she said.
Since it was agreed upon in 2010, the consent decree’s safeguards have applied only to voters who identify themselves with the final four digits of their Social Security number, a form of ID commonly used by poor people who cannot afford a driver’s license, utility bill or other accepted forms of ID.
Gentry, SEIU and other plaintiffs in the case want its protections expanded to all voters who cast provisional ballots.
Marbley’s ruling will address whether the decree’s protections should be expanded and whether Ohio laws that reject certain provisional ballots are constitutional.
A spokesman for Husted said he would count on the legislature to make the appropriate changes to Ohio laws that are deemed unconstitutional.
As it stands now, the secretary of state is caught between enforcing a consent decree that protects certain provisional ballots and the fact state law does not allow defective provisional ballots to be counted in cases of poll-worker error.
“Nothing in the plain language of the law authorizes the Secretary of State to create an exception for poll-worker error or any other reason,” according a legal brief filed in late May by the attorney’s general’s office on Husted’s behalf. “So when the former secretary of state agreed to create a “poll-worker error” exception, she was changing Ohio law and exceeding the scope of her statutory authority.”
The consent decree, agreed to by former Democratic Secretary of State Jennifer Brunner, essentially settled a 2006 lawsuit challenging an Ohio law that set rules for counting provisional ballots and for voter identification, including the law that says defective provisional ballots cannot be counted, even in cases of a poll worker’s error.
The secretary of state’s office — under both Brunner and Husted’s direction — has instructed local boards of elections to follow the rules within the consent decree by issuing directives, which carry the weight of law.
Subodh Chandra, one of the lawyers arguing to protect the consent decree, says it is needed to make sure voters don’t suffer because of poll workers’ unintentional mistakes.