Posted: April 15, 2011

S.Ct. response filed in Ohio provisional ballot case

This response to the pending stay application is now before Justice Kagan.  She can rule on it herself or refer it to the full Supreme Court.  The response observes that there are factual uncertainties concerning the specific provisional ballots that are subject of the Equal Protection dispute in this case, arguing that these uncertainties should be clarified in the district court (where the case has been remanded to by the Sixth Circuit) before the U.S. Supreme Court decides whether or not to get involved.  Interestingly, the response cites a letter filed just yesterday by the petitioners disclosing that some of the disputed ballots, which were thought to have been cast as part of "early voting" before Election Day were in fact cast on Election Day (although at the county board of election headquarters, rather than at neighborhood polling locations).  The response claims that this factual distinction potentially makes a difference to analyzing the merits of the Equal Protection issue.