Breaking: 6th Circuit-Finds Constitutional Violation in Not Counting Certain Wrong Precinct Ballots
Source: Election Law
Breaking News: Sixth Circuit Decides Provisional Ballot Cases, Finds Constitutional Violation in Not Counting Certain Wrong Precinct Ballots
Posted on October 11, 2012 9:32 am by Rick Hasen
The Sixth Circuit has decided SEIU v. Husted and NEOCH v. Husted in a single opinion.
This is the most important decision in this election cycle, and it represents a major victory for voters’ rights, regardless of party. It is especially important because this was a very conservative Sixth Circuit panel, and it affirms the idea that Bush v. Gore and Sixth Circuit precedent requires some degree of uniformity and fairness in the counting of ballots.
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The procedural history and issues in this case are complicated, and one aspect of the opinion is being sent back to the lower court for clarification and to make sure an earlier remedy does not create its own “Bush v. Gore problem” (in the 6th Circuit’s words), but the main point is this: it violates the Constitution (equal protection and due process) for the state of Ohio to fail to count ballots cast in the right location but in the wrong precinct solely because of poll worker error. As I stated in my Slate piece: “This is crazy. Amid all the fights over voter ID laws, purging noncitizens from voter rolls, and early voting, we should at least be able to agree, across partisan lines, on one thing: No one should lose the right to vote because a poll worker can’t tell an odd from an even number.”
Today the panel agreed. Two excerpts:
The application of Ohio Rev. Code §§ 3505.183(B)(4)(a)(ii) and (B)(4)(b)(ii) to right-place/wrong-precinct ballots caused by poll-worker error effectively requires voters to have a greater knowledge of their precinct, precinct ballot, and polling place than poll workers. Absent such omniscience, the State will permanently reject their ballots without an opportunity to cure the situation. The mere fact that these voters cast provisional ballots does not justify this additional burden; as the district court explained, Ohio law now requires thirteen different categories of voters to cast provisional ballots, ranging from individuals who do not have an acceptable form of identification to those who requested an absentee ballot or whose signature was deemed by the precinct official not to match the name on the registration forms….
Nor has the State shown abuse in the district court’s fashioning of injunctive relief tailored to the identified harm. The State would disqualify thousands of rightplace/wrong-precinct provisional ballots, where the voter’s only mistake was relying on the poll-worker’s precinct guidance. That path unjustifiably burdens these voters’ fundamental right to vote. Recognizing that a prospective remedy could not undo all of the harm occasioned by poll-worker error, the district court crafted a narrow remedy that preserves as much of a miscast ballot as possible.
Read more: http://electionlawblog.org/?p=41452
Ohio Loses Appeal, Can’t Reject Voters in Wrong Precincts
The U.S. Court of Appeals in Cincinnati issued the ruling today, the second loss in two weeks for the state in election- related lawsuits.
A lower-court federal judge in August ruled that provisional ballots, used to record votes when eligibility is an issue, can’t be thrown out if they’re filed in the wrong precinct as a result of poll-worker error. Opponents of a 2006 law saying they must be discarded argued that the law would unfairly cause the rejection of thousands of votes in the November election.
Ohio said the law didn’t disenfranchise anyone and allowed a more efficient election. A three-judge panel of the U.S. appeals court in Cincinnati disagreed, finding that the plaintiffs had “shown a likely equal-protection violation.”
Ohio’s secretary of state “failed to present evidence to the district court that other factors besides poll-worker error caused wrong-precinct ballots, and the state offers none now,” the panel said.
“Because the state offers no evidence of alternative causes, we find no clear error with the district court’s factual conclusion that most right place/wrong-precinct ballots result, and will continue to result, from poll-worker error,” it said.
http://www.businessweek.com/news/2012-10-11/ohio-loses-appeal-can-t-reject-voters-in-wrong-precincts
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