Bloomberg News

Ohio, Pennsylvania Voter Rules Face Judges’ Scrutiny

October 02, 2012

Ohio Attorney General Mike DeWine

Ohio Attorney General Mike DeWine, a Republican, appealed, arguing that Ohio has previously allowed such a distinction between military voters and civilian voters. Photographer: Douglas Graham/Roll Call/Getty Images

Ohio Republican officials urged a U.S. appeals court to overturn a decision barring the state from disqualifying provisional ballots cast in the wrong precinct.

A lower-court judge in August ruled that such ballots can’t be thrown out if they’re filed in the wrong precinct as a result of poll-worker error. The law doesn’t disenfranchise voters and allows officials to monitor the progress of an election, Fred Nelson, an attorney for the state, said yesterday at a hearing before the U.S. Court of Appeals in Cincinnati.

“The problem only affects 0.1 percent of all votes,” Nelson said, asking the three-judge panel to throw out the earlier ruling. “As a category, it doesn’t undermine the fabric of the election.”

The lower-court decision should be upheld, Danielle Leonard, an attorney for the plaintiffs, which include the Service Employees International Union, said at the hearing.

“There’s something incredibly unfair when a poll worker is providing information to a voter who is then disqualified,” she said. “It disenfranchises voters and will result in the disqualification of thousands.”

The 2006 Ohio measure is one of two voter regulations from that state being litigated before the appeals court in Cincinnati. The state also appealed a lower-court order expanding early-voting hours. No hearing date has been scheduled in that appeal.

Decision Date

The judges didn’t indicate when they would make a decision in the provisional-ballot case.

The judges hearing the appeal were all appointed by Republican presidents. Julia Smith Gibbons and Deborah Cook were chosen by George W. Bush; Lee Rosenthal, a U.S. district judge from Houston, by George H.W. Bush.

The cases are among at least 15 pending nationwide over election law limits on issues such as early voting, registration and identification in the run-up to the Nov. 6 vote. In Pennsylvania, a judge today barred enforcement of the state’s voter photo-identification law until after the election.

Similar laws have been enacted by Republican-dominated legislatures across the country -- laws aimed in part at fighting voter fraud, proponents contend. Opponents argue they are an effort to limit votes for Democratic candidates.

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 ID requirement at polls there.

Registration Suits

Of the pending voter regulation suits, about half are in states where both Democratic President Barack Obama and former Massachusetts Governor Mitt Romney, a Republican, contend they can win. In Ohio, a so-called swing state, both Obama and Romney see a path to victory.

In the ballot lawsuit, the Service Employees International Union, Local 1, and other plaintiffs sued the Ohio secretary of state, asking a court to issue a statewide injunction ordering that provisional ballots cast in the wrong precinct be counted.

The union argued that 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.

Judge’s Order

U.S. District Judge Algenon Marbley in Columbus on Aug. 27 ordered such ballot disqualification stopped. In 2008, Ohio rejected 14,355 so-called wrong-precinct ballots, according to the judge’s decision.

Marbley, appointed by former President Bill Clinton, a Democrat, 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.

Reversing Marbley’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 elections, more than 1,500 ballots were counted that would have been disqualified if the law hadn’t been limited by an earlier consent decree -- a policy that changed in 2012 -- they said.

Higher Turnout

“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.

In about 80 percent of provisional votes cast in the wrong precinct, the voters were given the wrong ballots because of poll-worker error, Leonard said at the hearing.

“To disqualify those ballots after the election is not needed to uphold the precinct voter system,” she said. “It’s the poll workers job to tell voters they’re in the wrong place, and it overrides voter error for going to the wrong location.”

The counting of wrongly-cast ballots would “undermine the precinct system,” Nelson, the state’s attorney, said at the hearing yesterday. “If a vote counts even when cast in the wrong precinct, voters will be able to vote on issues that aren’t relevant to them.”

The Ohio system is “perfectly rational,” Nelson said. “Ohio’s record with provisional ballots holds up well compared to other states.”

Early Voting

Also pending before the Cincinnati appeals court is a lawsuit dealing with Ohio’s early-voting restrictions. Another 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.

Ohio Attorney General Mike 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 today.

Pennsylvania Ruling

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 in time to vote.

The state high court, in its 4-2 decision, told Commonwealth Court Judge Robert Simpson, a Republican, to submit a supplemental opinion by today. He held hearings last week.

Simpson today said that while election officials can ask for ID on Election Day, voters without ID can still cast ballots and have them counted. Previously the law had given those voters six days after the election to get ID to have their provisional ballots counted.

“I expected more photo IDs to have been issued by this time,” Simpson said in the 16-page ruling. “For this reason, I accept petitioners’ argument that in the remaining five weeks before the general election, the gap between the photo IDs issued and the estimated need will not be closed.”

Voter Impact

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 state has issued about 10,000 ID cards since March, or 10 percent of the lowest estimate of registered voters without ID, according to an American Civil Liberties Union chapter there.

The Ohio provisional-ballot cases are Service Employees International Union v. Husted, 12-469 and Northeast Ohio Coalition for the Homeless v. Husted, 12-03916, both 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 mcfisk@bloomberg.net; Tom Schoenberg in Washington federal court at tschoenberg@bloomberg.net; Sophia Pearson in Philadelphia federal court spearson3@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net.


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