Posted: April 17, 2012

OH Provisional Ballot Case Developments

Yesterday brought two developments in Ohio regarding provisional ballot counting. First, Ohio Senate President Niehaus and Ohio House Speaker Pro Tempore Blessing filed a mandamus action in the Ohio Supreme Court to require the Secretary of State to rescind directives issued pursuant to a consent decree resulting from the federal NEOCH v. Brunner case. The directives permit provisional ballots to be counted even if cast in the wrong precinct or if some signature requirements are not fully complied with for reasons attributable to poll-worker error. The complaint claims that constitutional separation of powers do not permit the Secretary of State to amend or modify laws passed by the General Assembly without authorization from the General Assembly.

In another provisional ballot case, the 6^th Circuit Court of Appeals denied the Hamilton County Board of Elections request for a stay of the District Court’s decision that provisional ballots cast in the wrong precinct, again due to poll-worker error, should be counted. This case relies on a federal equal protection claim, as some wrong-precinct ballots, cast wrongly due to poll-worker error, were counted.