Ohio Attorney General Mike DeWine’s bid to preserve a law disqualifying provisional election ballots filed in the wrong precinct comes before a federal appeals court next week in the so-called battleground state.
The 2006 measure is one of two voter regulations being litigated in the court. Similar laws were enacted by Republican- dominated legislatures across the country after the 2008 election -- laws aimed in part at fighting voter fraud, proponents argued. Opponents contend they are a thinly veiled effort to limit votes for Democratic candidates.
With 38 days left before the presidential election, time is running out for judges to resolve voter access suits between supporters of President Barack Obama and Mitt Romney. Over the past few months, the majority of challenges have been resolved against the laws, most recently a Sept. 27 decision in Wisconsin effectively barring a photo identification requirement at polls. In Pennsylvania, voters may learn next week whether courts there will allow a similar law to be enforced on the Nov. 6 election.
“It’s not unprecedented to have these last-minute lawsuits over voting process,” Edward Foley, director of the election law program at Ohio State University’s Moritz College of Law in Columbus, said. “They’ve just snowballed since Bush v. Gore.” The presidential election in 2000 was decided in that case by the U.S. Supreme Court.
There are at least 15 cases pending nationwide over election law limits on issues such as early voting, voter registration and voter identification. Of those, almost half are in states where both candidates contend they can win.
Two of the most important challenges, Foley said, involve the laws in Ohio. It is a state where both Obama and Romney, a former Massachusetts governor, see a path to victory. No Republican has been elected president without carrying Ohio.
The U.S. Court of Appeals in Cincinnati on Oct. 1 is scheduled to hear arguments in the state’s challenge to a lower court ruling on the counting of provisional ballots. U.S. District Judge Algenon Marbley in Columbus held Aug. 27 that Ohio’s provisional ballots can’t be thrown out if they’re filed in the wrong precinct because of poll-worker error.
In 2008, Ohio rejected 14,355 so-called wrong-precinct ballots, according to the judge’s decision.
Obama won the state by 262,224 votes in 2008. Former President George W. Bush won Ohio by 118,775 votes in 2004. A Quinnipiac University/New York Times/CBS News poll this week said Obama has a 53 percent to 43 percent advantage there over Romney.
In the ballot lawsuit, the Service Employees International Union, Local 1, and other plaintiffs sued the Ohio Secretary of State. They asked a court to issue a statewide injunction ordering that provisional ballots cast in the wrong precinct still be counted.
The union argued that the rejection of such ballots violates the rights of voters, particularly in locations that have multiple precincts -- which are generally in urban areas.
In these locations, casting a ballot in the right precinct is dependent on the poll worker, according to the court filings. Plaintiffs said that accepting these ballots would prevent the disqualification of thousands of votes.
Marbley, appointed by former President Bill Clinton, ordered such ballot disqualification stopped. The judge said that, as a matter of law, if a voter casts a ballot in the wrong precinct it’s the fault of a poll worker, unless the voter deliberately refused to go to the right polling place.
To disqualify a voter who used the wrong precinct, the state would have to provide a sworn statement by a poll worker that this happened. The state appealed the decision.
“The sooner these matters can be resolved the better,” Matt McClellan, spokesman for Ohio Secretary of State Jon Husted, a Republican, said in a telephone interview. “They’re in an expedited process and we hope they will be resolved well in advance of the election.”
The three judges scheduled to hear arguments in the appeal are all Republican appointees. Julia Smith Gibbons and Deborah Cook were both chosen by former President George W. Bush, and Lee Rosenthal, a U.S. district judge from Houston federal court, was appointed by former President George H.W. Bush.
Reversing Marbely’s decision would “indisputably result in the rejection of thousands of votes by lawfully registered voters that would otherwise have been protected from disqualifying poll-worker error,” lawyers for the union and a homeless advocacy group said in a filing with the appeals court.
In 2011 alone, more than 1,500 ballots were counted that would have been disqualified, they said.
“At least that number would be rejected in the upcoming presidential election, which will have far higher voter turnout,” the plaintiffs said in the Sept. 4 filing.
Also pending before the Cincinnati appeals court is a lawsuit dealing with early voting restrictions. Another Ohio federal judge, ruling Aug. 31 on a complaint filed by Obama’s campaign, ordered the restoration of three days of early voting for all citizens that the Republican-controlled legislature had limited only to members of the armed services and few others. In that case, Obama for America claimed as support for its case that, in the three days before the 2008 election, 93,000 Ohio voters cast their ballots.
The judge ruled that it was unconstitutional to take away three days of early voting for most citizens in the state while allowing Ohioans serving in the military to have them.
DeWine, a Republican, appealed, arguing that Ohio has previously allowed such a distinction between military voters and civilian voters. The U.S. Court of Appeals agreed to expedite Ohio’s appeal, though it has yet to schedule an argument. Early voting in Ohio begins Oct. 2.
“The court may struggle with ambiguity in these two cases,” Ohio State’s Foley said of the election law challenges before the federal appeals court. “Neither case is open or shut.”
This month, Republican-sponsored measures suffered a series of adverse court rulings. Initiatives aimed at purging non- citizens from the rolls in Iowa and Texas were put on hold, while Pennsylvania’s voter ID law was sent back to a lower court for review. And New Hampshire was forced to end a plan to require college students to register their vehicles in the state in order to vote.
In Pennsylvania, the state supreme court on Sept. 18 set aside a lower-court ruling upholding a voter ID law and asked the judge to revisit his decision. The judge was told to assess whether all citizens will be able to obtain allowable forms of ID. The state high court, in its 4-2 decision, asked Commonwealth Court Judge Richard Simpson, a Republican, to submit a so-called supplemental opinion by Oct. 2. He held hearings on the matter this week.
Two Democratic justices dissented from the majority’s ruling, saying they would have blocked the law outright. They chastised their colleagues for sending the case back to Simpson less than two months before the election.
“The eyes of the nation are upon us,” Justice Debra McCloskey Todd wrote, “and this court has chosen to punt rather than to act.”
A state analysis found Pennsylvania’s photo ID requirement might exclude as many as 759,000 eligible voters, or 9 percent of its electorate, from voting in the presidential election. In 2008, Obama won the state by 620,478 votes.
The Quinnipiac poll said Obama has a 54 percent to 42 percent advantage over Romney in the state.
As of last week, Pennsylvania had issued about 9,000 of an estimated 100,000 needed IDs since the law took effect in March, according to an American Civil Liberties Union chapter there.
Wisconsin’s attempt to revive its new voter ID law in time for the election failed Sept. 27 before that state’s supreme court. Two lower-court judges found the new law unconstitutional in separate decisions earlier this year.
Dane County Circuit Court Judge Richard Neiss in Madison rejected the law in March in a lawsuit filed by the League of Women Voters of Wisconsin. Judge David Flanagan in Madison ruled the law invalid in July in a suit brought by the Milwaukee branch of the National Association for the Advancement of Colored People, or NAACP.
Wisconsin Attorney General J.B. Van Hollen, a Republican, asked the state’s highest court last month to immediately review the decisions. Neiss had denied the delay request in March, and a state appeals court agreed. Flanagan denied the stay request Sept. 14 in the NAACP case, citing the impending election.
“The inescapable reality is that the need for stability, predictability and adequate preparation for the electoral process strongly weighs against this court granting a stay and thus changing the voting process at this late hour,” Flanagan wrote. On Sept. 27, the supreme court refused a stay as well.
The Wisconsin Supreme Court’s action means the state’s voter ID law is dead for this election, said Susan Crawford, an attorney for the League of Women Voters of Wisconsin.
Obama won Wisconsin by 414,818 votes in 2008.
In Iowa, that state has given up on a Republican-backed effort to purge non-citizens from the voter registration rolls after a state judge Sept. 14 said the process would probably create confusion for legitimate voters.
Iowa Secretary of State Matt Schultz, a Republican, isn’t going to appeal the ruling temporarily barring the state from using emergency-procedures to purge the rolls, said Chad Olsen, his spokesman.
“Given the reality of the time constraints there wouldn’t be any resolution before the election,” Olsen said. “For this election, we’re done.”
Obama won Iowa in 2008 by 146,651 votes.
Earlier this month, Florida Governor Rick Scott, a Republican, lost a federal court bid to throw out a challenge to his initiative to purge non-citizens from voter registration rolls ahead of the election.
U.S. District Judge James Whittemore in Tampa ruled that a complaint alleging the program requires pre-clearance under the Voting Rights Act, in part due to historical discrimination against minorities, may proceed. The judge wrote that he will rule at a later date on whether the state effort to purge voter rolls is subject to the federal voting law.
Republicans did score a few victories in voter law challenges in September, one of which also involved Florida.
On Sept. 24, a federal judge in Jacksonville ruled the state doesn’t need to provide 96 hours of early voting in all counties for the election.
That ruling is separate from a federal case in Washington in which Florida agreed to keep 96 hours of early voting in five counties covered by the Voting Rights Act.
In the 2008 election, 54 percent of black voters in Florida voted early -- twice the rate for whites, according to court filings. A report paid for by the Democratic National Committee stated that 1.1 million blacks voted in Florida in 2008. Obama won there by 236,450 votes.
The Quinnipiac poll this week gave Obama a 53 percent to 44 percent lead in Florida over Romney.
U.S. Representative Corrine Brown, who filed the challenge in Jacksonville federal court, hasn’t decided whether to appeal, according to Mike Collins, a spokesman for the Democratic lawmaker.
And on Sept. 26, a Tennessee state judge in Nashville dismissed a lawsuit brought by the city of Memphis and two voters alleging the state’s new voter ID law is unconstitutional.
The plaintiffs claimed that 10 percent of the state’s voters didn’t have an acceptable photo ID under the new law, particularly affecting senior citizens, minorities and students, many of whom are probable Democratic voters.
Chancery Court Judge Carol McCoy ruled that the city didn’t have the right to sue because it wasn’t a voter, and the individuals still had time before the election to acquire the right photo ID, plaintiffs’ lawyer George Barrett said in an interview. Memphis hasn’t decided whether to appeal, Mary Cashiola, a city spokeswoman, said in an e-mail.
The Ohio provisional ballot case is Northeast Ohio Coalition for the Homeless v. Husted, 12-3916, U.S. Court of Appeals for the Sixth Circuit (Cincinnati). The Ohio early voting cases are Obama for America v. Husted, 12-4055, 12-4076, U.S. Court of Appeals for the Sixth Circuit (Cincinnati). The Pennsylvania case is Applewhite v. Commonwealth of Pennsylvania, 71 MAP 2012, Supreme Court of Pennsylvania (Harrisburg).
To contact the reporters on this story: Margaret Cronin Fisk in Detroit at email@example.com; Tom Schoenberg in Washington federal court at firstname.lastname@example.org.
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