Posted: December 5, 2008
Summary of today's Ohio Supreme Court decision on provisional ballots
Provisional ballots are likely to be counted by tomorrow evening and the outcome of the 15th congressional district race between Steve Stivers and Mary Jo Kilroy may be known by then. Theirs is the last congressional race in the country to have no initial winner declared. An automatic recount is likely to be triggered. See the Dispatch coverage here. See opinion, MPC case page.
Six of the seven justices participated in the decision and all agreed that the majority of the ballots should not be counted while Justice Lanzinger was joined by Justice Pfeifer in her opinion that the 30 provisional ballots with name but no signature could have been counted. The Court treated each of the three groups of ballots separately in its opinion. The three groups of ballots and the reasons they were deemed ineligible for counting are:
1) ballots with name but no signature; ineligible for counting because, despite consistent instructions, the secretary’s interpretation of the law was unreasonable;
2) ballots with signature but no printed name; ineligible for counting because the secretary’s instructions to only one county post-election failed to ensure uniformity in counting provisional ballots and;
3) ballots with name and/or signature in the wrong place on the ballot envelope; ineligible for counting because, despite consistent instructions, the secretary’s interpretation of the law was unreasonable.
1. Ballots with printed name but no signature
As to this group, the majority found that Secretary Brunner’s instructions pre- and post-election were consistent but that they were not a reasonable interpretation of the law. Justice Lanzinger argued in her dissent that, when it cannot be determined whether a voter declined to sign an affirmation or whether the poll worker confirmed this declination, officials must err on the side of counting the ballots to avoid disenfranchising voters. The majority thought this argument ignored the requirement, cited from a 1955 Ohio Supreme Court case, that regularity be presumed in the absence of evidence of irregularity. The majority also said that this interpretation requires the assumption of no voter error (and impliedly only poll worker error) and would be a “disservice” to poll workers who are trained to follow the law.
2. Ballots with signature but no printed name
The Court held that ballots with a signature with no printed name cannot be counted because the secretary’s pre-election instructions consistently said that both name and signature are required for a ballot to be counted and that she abused her discretion in instructing only Franklin County after the election to count provisional ballots without both name and signature. Specifically, they said by instructing only Franklin County, she failed to ensure uniform treatment of provisional ballots across all of Ohio’s counties. The Court said that other counties have certified their vote totals and cannot now modify them. This may not be correct. Ohio statute requires counties to amend their returns if a change in the vote totals is discovered. This would happen when, for example, a recount is not completed before the day counties must certify their returns, which is 21 days after an election.
3. Ballots with name and signature in the wrong place on the ballot envelope
The Court deemed the secretary’s consistent instruction before and after the election to be unreasonable. A March 2008 email to the Franklin County Board of Elections said that if name and signature were somewhere on the ballot envelope, that would satisfy the requirement that a voter affirm his or her registration and eligibility to vote. The Court discussed this group of ballots very briefly noting that for most of the ballots in this group, voters had printed and signed their name on the identification affirmation. The Court held that this does not satisfy the requirement to affirm registration and eligibility nor does the incorrect placement of name and signature elsewhere on the envelope.
Justice Pfeifer wrote separately on a procedural matter. The Court has previously been strict in requiring that plaintiffs seeking mandamus relief affirm their personal knowledge of the circumstances of the suit in an affidavit. Plaintiffs here did not do so and the court still found that they had jurisdiction over the matter. Justice Pfeifer warns that practitioners should not take this to mean that the rule will not be strictly applied in the future.