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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Tuesday, November 14
Court Order on Ohio's Provisional Ballots
U.S. District Judge Algenon Marbley today issued this Agreed Enforcement Order in the NEOCH v. Blackwell case. As described in this post, the order sets forth the requirements for counting provisional ballots in Ohio's 88 counties.

This is particularly important for two congressional races, for the 2nd and 15th district seats, that still remain undecided. The Democratic candidate trails in each of those races, but is hoping to make up ground through provisionals that are as yet uncounted. As I noted yesterday, the Democratic candidate in the 15th (Mary Jo Kilroy) actually has a better shot, albeit a long one, of catching up. Although she trails by more than 3,000 votes, there are a lot more uncounted provisional and absentee ballots in her district.

One of the most interesting aspects of the agreed-on order is that the Secretary of State's office acknowledges that some voters were wrongly required to cast a provisional ballot on election day, even though they complied with the ID requirements as clarified in the consent order issued a few days before the election. In particular, some voters with a driver's license containing an old address were required to cast a provisional ballot rather than a regular one. Under today's order, those provisional ballots are to be counted as though they were regular ballots.

Today's order also prescribes a process for determining whether provisional ballots will be counted. It includes an eight-factor test, set forth in the consent order, that boards of election are supposed to adhere to. Those factors include determining that the voter was qualified and registered, hadn't previously voted, and presented proper ID. For provisional ballots that are to be rejected, the order provides that partisan observers may make an objection before the board of elections votes on whether that ballot should be counted.

In general, the order appears to provide a reasonably generous standard and a fair process for counting provisional ballots. Most importantly, it gives the counties much needed guidance. Judge Marbley and the parties again deserve great credit for reaching agreement. I'm cautiously optimistic that the order will result in a vast majority of the provisional ballots cast by qualified Ohioans being counted.

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