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Information & Analysis

SEIU v Husted Hearing Summary

Yesterday, Judge Algernon Marbley of the U.S. District Court for the Southern District of Ohio heard oral arguments over whether to issue a Preliminary Injunction that could fundamentally change how provisional ballots are counted in the crucial swing state of Ohio during the 2012 election. The hearing is a continuation of the long-running NEOCH litigation, with the addition of the SEIU as a plaintiff coming earlier this year (the SEIU case was filed separately, but was linked with NEOCH as a related case). Both plaintiffs—the SEIU and NEOCH—are seeking in effect the same relief: a preliminary injunction requiring Ohio election officials to count all votes for statewide races on ballots cast in the right polling place but in the wrong precinct unless pollworkers sign an affidavit stating that the voter insisted on casting a ballot in the wrong precinct even after the voter was informed that he or she was in the wrong precinct and that, as such, the vote would not count. (Technically, the NEOCH’s motion is to expand the scope of a previous decree in their case, but in substance it is the same as the SEIU motion for a preliminary injunction.)

The SEIU advanced three main arguments challenging Ohio provisional ballot laws. As interpreted by the Ohio Supreme Court, these laws state that provisional ballots cast in the wrong precinct will be not be counted even if pollworker error occurred. The one exception is where voters gave the last four digits of their Social Security Numbers as identification, because those provisional ballots are subject to the NEOCH consent decree.

The SEIU first argued that rejecting provisional ballots as a result of pollworker error was an undue burden on voters and thus violated the Equal Protection clause. Second, the SEIU made an argument based on Bush v. Gore that voters were being treated differently based on the form of ID they provided—since provisional ballots cast with a Social Security Number would be counted by virtue of the NEOCH consent decree but provisional ballots cast with other forms of ID would not be counted—and based on where they live, because different counties may apply different standards to counting provisional ballots. Finally, the SEIU, relying on decisions from the Sixth Circuit and the Southern District of Ohio in the Hunter litigation, argued that throwing out provisional ballots that were miscast due to pollworker error without any notice to the voter is fundamentally unfair and violates Substantive Due Process.

One of the key issues that Judge Marbley questioned both sides about was the scrutiny standard to be applied to the case. The SEIU argued that strict scrutiny should be applied. In making this argument, the SEIU relied on Crawford v. Marion County Board of Elections, where the U.S. Supreme Court held that only regulations unrelated to voter qualifications would be subject to strict scrutiny. The SEIU contended that the Ohio laws being challenged were unrelated to voter qualifications, because the issue is one of already-qualified voters having their ballots thrown out due to pollworker error.

Ohio Secretary of State Jon Husted’s counsel rejected this argument and maintained that rational basis should apply. The Secretary’s counsel argued that these laws are related to voter qualification, because voters in Ohio are only qualified to vote in the correct precinct, a requirement upheld by the Sixth Circuit in the Sandusky County Democratic Party case. Judge Marbley pushed back on this, questioning how a vote cast in the wrong precinct due to a pollworker’s mistake could go to the voter’s eligibility.

This ties in to another main point that Judge Marbely questioned both sides about: what percentage of right polling place-wrong precinct ballots are miscast in Ohio due to pollworker error? The SEIU noted that there was not a single instance of voter error in the record, a fact Secretary Husted’s counsel conceded while noting that a voter could give pollworkers an incorrect address, thus causing the provisional ballot to be miscast due to voter error and that such evidence would not show up in the record because the pollworker would not know the voter made an error. The SEIU contended that this was unlikely, because pollworkers are best-positioned to determine a voter’s precinct and also control where voters are directed within a polling place and which precinct ballot they are given.

While he asked tough questions of both sides, Judge Marbley did not appear to be persuaded by the arguments of Secretary Husted’s counsel. The Secretary’s counsel had three primary arguments against the Preliminary Injunction: first, that the state’s legitimate interest in maintaining a precinct-based voting system, an interest affirmed by the Sixth Circuit in Sandusky, justified these laws; second, that the number of voters affected by the challenged laws are so small that it cannot be a Constitutional violation; and third, that the Preliminary Injunction might create a slippery slope whereby other Equal Protection violations occur because votes are diluted by counting provisional ballots under the Preliminary Injunction. Judge Marbley questioned all three of these contentions, noting that only statewide races—rather than races affected by precinct lines—would be counted under the Preliminary Injunction, thus avoiding any impact on the precinct-based voting system.

Judge Marbley was particularly skeptical of the other arguments, questioning why he shouldn’t fashion a remedy that would minimize the number of people disenfranchised, even if the number was already relatively small. He also referred to some of the slippery slope arguments as “election sophistry.” All in all, Judge Marbley’s questions indicated a desire to make sure that Ohio Boards of Election count as many provisional ballots cast by duly registered voters as possible.

The Preliminary Injunction issue should be decided very soon. Judge Marbley noted that he had fast-tracked the case, stated that there would be no post-hearing briefing, and rejected a motion to intervene by the State of Ohio because the request came in late and could further delay the proceedings. All of this indicates that Judge Marbley will issue his decision quickly, though an appeal to the Sixth Circuit seems almost inevitable.

Commentary

Edward B. Foley

Of Bouncing Balls and a Big Blue Shift

Edward B. Foley

It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia. 

Read full post here.

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In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

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Info & Analysis

Tokaji and Strause release The New Soft Money: Outside Spending in Congressional Elections

Dan Tokaji and Renata Strause will release their report on independent spending, entitled The New Soft Money: Outside Spending in Congressional Elections on Wednesday, June 18.  The report includes interviews with former Members of Congress, such as Senators George Allen, Kent Conrad, and Ben Nelson, and Representatives Mark Critz, Tim Holden, Steve LaTourette, and Joe Walsh, as well as recent congressional candidates, campaign staff, political operatives, legislative staff, and representatives of outside groups. See here for details.

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