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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Opinion and Analysis

U.S. District Judge James Carr Issues Stinging Order

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October 20, 2004

U.S. District Judge James Carr today issued a stinging order, which finds that Ohio Secretary of State Ken Blackwell's new proposed directive on provisional voting still fails to comply with the Help America Vote Act. Last week, Judge Carr issued an order finding that Blackwell's directive 2004-33 violated HAVA, by refusing to allow provisional ballots to be cast by voters unless it can be confirmed that they're at the correct precinct. See here for my description and a copy of the court's order. The court denied Blackwell's request for a stay, and ordered him to file a HAVA-compliant directive for the court's review.

In today's ruling, Judge Carr lambasts Secretary Blackwell for his failure to adhere to the new provisional voting requirements of federal law. Here's a sample:

Instead of describing the requirements of HAVA in Directive 2004-33, Blackwell gave a narrative description of Ohio's pre-HAVA, outdated provisional voting procedures. Those procedures indisputably fail to extend the right to vote provisionally, as mandated by HAVA, to all Ohio voters who are entitled under HAVA to do so.

By failing to discuss HAVA, on the one hand, and describing only outmoded, no longer applicable procedures on the other, Blackwell, in all likelihood, left Ohio's election officials more confused than they would have been if the directive had not been issued.

As a result of his failure to do the job he admitted in Directive 2004-33 must be done...Blackwell, Ohio's chief election official, would, if Directive 2004-33 were to have been implemented, have disenfranchised large numbers of Ohio voters on November 2, 2004....

The court goes on to explain that Blackwell's new proposed directive, submitted in response to the court's preliminary injunction order, still falls short of what HAVA requires:

The Proposed Directive remains as drastically under-inclusive as Directive 2004-33, and is every bit as much in violation of HAVA.

The right to vote provisionally under HAVA is not limited to persons whose names are not on the rolls. That right is also extended to any individual who is told by an election official that he or she "is not eligible to vote."...

By not even mentioning this group -- the primary beneficiaries of HAVA's provisional voting provisions -- Blackwell apparently seeks to accomplish the same result in Ohio in 2004 that occurred in Florida in 2000....

[T]he Proposed Directive treats this Court's determination that HAVA permits county-wide, rather than just "home" precinct provisional voting in federal elections as though that decision had not been reached ....

[Blackwell's] failure to submit a Proposed Directive that reflected my ruling ont that issue is inexplicable.

In light of Blackwell's failure to produce a directive that complies with HAVA and the preliminary injunction order, the court submits a proposed order for comment by counsel. That order closely tracks the requirements of HAVA, and requires that no one be denied a provisional ballot because they reside within a different precinct. Those provisional ballots must be counted for the U.S. President and Senate races, and for the U.S. House race provided that the voter is eligible to vote for the contest on the ballot in the precinct at which he or she appears.