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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.

Weekly Comment

Ohio Considers Election Reform - Part I

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May 3, 2005

With memories of the tumultuous 2004 election still fresh, the Ohio legislature has begun to examine what might be done to make the state's voting system function better in the future. The House Elections and Ethics Committee is presently considering a bill that appears to be the main vehicle for election law amendments, and would make significant changes to various aspects of Ohio's voting system.

In its present form, the House bill is 685 pages long. That's partly because the bill (HB 3) reprints the affected sections of Ohio law as they currently exist, with the portions to be added underlined and those to be deleted crossed out. A similar bill (SB 3) has been introduced in the Ohio Senate.

In addition, the Senate is considering a bill (SB 36) that would require voters to show photo identification. This proposal would implement an even stricter ID requirement than the one recently enacted by the Indiana legislature, which has recently been challenged in court by the Indiana Civil Liberties Union and the Indiana Democratic Party. Some voting rights advocates are concerned that a similar ID requirement may be added to HB 3.

Taken as a whole, the current version of HB 3 includes some good features, some questionable ones, and some that would be affirmatively harmful. While a complete analysis of the significant changes proposed isn't possible in this space, I'll be reviewing and commenting on some of the bill's key features in the next two weeks. This week's comment addresses challenges to voter eligibility and provisional ballots.

Challenges to Voter Eligibility

One of the most prominent issues in the weeks leading up to the 2004 election was the parties' use of challenges to voter eligibility. Presently, Ohio law allows challenges to be made either before the election or on election day.

HB 3 would prevent party representatives from making challenges to voter eligibility on election day. (Party representatives would still be allowed in the polling place, but would be designated "observers" rather than challengers.) This is an improvement over existing law, which raises the specter of party representatives making meritless challenges that would slow down the voting process and possibly intimidate voters.

Pre-election day challenges would still be allowed, if filed at least twenty days before the election, rather than eleven days as is the case under current law. This too is an improvement, since it gives more time to resolve challenges before election day.

Boards of election would be allowed to grant or deny challenges based solely on the board records. While it makes sense to allow election boards to deny challenges without any notice to the voter, it's more perilous to grant them without providing the voter notice and the opportunity to rebut the challengers' case. Although the voter would still be able to vote provisionally, the absence of pre-election notice and a hearing increases the possibility of erroneous exclusion. This is a change from existing law, which requires notice and the chance for a hearing before sustaining a challenge to voter eligibility.

In cases where the board isn't able to determine whether the challenge should be sustained based on its records, an in-person hearing would have to be scheduled. But problems could still arise in circumstances where the board can't conclusively rule on late-filed challenges before the election. In cases where a challenge is filed less than 30 days before the election, the board would have the option of setting the hearing after election day. In those circumstances, the voter would cast a provisional ballot rather than a regular ballot at the polls, which would be counted only if the voter is later determined eligible.

The danger that this presents is that it presents an incentive to file numerous challenges within 30 days of the election. In the event that the election board can't conclusively determine whether the challenges should be granted, voters would be left to cast provisional ballots, which might or might not be counted after the election. It's difficult to predict how this will play out in a close election, but it creates the possibility of more voters casting provisional rather than regular ballots on election day, with the parties left to fight over those ballots after the election.

Provisional Voting

No area provoked greater controversy during the 2004 election season than provisional ballots. One of the most hotly contested issues was whether provisional ballots should be counted, if cast in the wrong precinct. Secretary of State Blackwell ordered that such ballots not be counted, and the Sixth Circuit concluded that this order was consistent with the Help America Vote Act.

HB 3 would amend Ohio law to clarify that provisional ballots would not be counted if cast in the wrong precinct. Under HAVA, provisional ballots should be counted if cast by voters eligible and registered to vote in the "jurisdiction." Ohio's existing statutes don't define this term.

HB 3 would define "jurisdiction" to mean "the precinct in which a person is a legally qualified elector." Thus, a voter who mistakenly appeared at the wrong precinct wouldn't have her provisional ballot counted. That's true even if that voter had been mistakenly directed to the wrong precinct by state or county officials. It's also important to remember that some polling places have multiple precincts in them – sometimes all voting in the same room. It appears that a provisional ballot wouldn't be counted if the voter appeared at the right polling place, but voted at the wrong precinct within that polling place.

Whether or not this is consistent with HAVA, it's clearly not what was intended by the bipartisan commission that originally proposed a federal provisional voting requirement. After the 2000 election, former Presidents Jimmy Carter and Gerald Ford chaired a national blue ribbon commission. Among their most important recommendations was that all states implement provisional voting, which was already in place in 19 states. It cited the example of California, in which the provisional ballot is counted if cast in the correct county.

In recommending provisional voting in all states, the Commission suggested building on the pre-existing requirements of the National Voter Registration Act (commonly known as "Motor Voter") which defined "registrar's jurisdiction" as the entity maintaining voting lists. 42 U.S.C. § 1973gg-6(j). This is ordinarily the county, city, or town in which the voter resides.

The Carter-Ford Commission explicitly linked its provisional voting recommendation to another key recommendation that became part of HAVA: the implementation of statewide voter registration databases. With more reliable databases maintained at the state level, the Commission reasoned, it ought to be easier to realize the goal of making sure that "[n]o American qualified to vote anywhere in her or his state should be turned away from a polling place in that state." The Commission therefore recommended that provisional ballots be counted if the "provisional voter is eligible and qualified to vote within the state" (emphasis added).

That's not to say that voters could appear at any precinct they desired with impunity. If a voter turned up in the wrong precinct, election officials would not be required to give them a ballot tailored to their home precinct. Rather, the provisional ballot would be counted "only for the offices for which the voter is qualified to vote." In effect, the Commission explained, the voter who appeared at the wrong precinct would only be permitted to cast a "limited ballot."

The current version of HB 3 departs from the bipartisan Carter-Ford Commission's vision. Given that Ohio is required by HAVA to have its statewide registration database in place by 2006, there's no good reason for failing to count provisional ballots of those eligible to vote anywhere in the state. Once that database is in place, it should be a simple matter to determine after the election whether that voter is really eligible and registered to vote. At the very least, provisional ballots should be counted if cast in the correct county – but again, only for those contests in which the individual was eligible to vote.

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Next week's comment will have more on this bill, including amendments concerning absentee voting, recounts, and contests. In addition, there will be a hearing on HB 3 before the House Elections and Ethics Committee this Wednesday at 10:30 am. Check the Equal Vote blog for an update.