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Ohio Provisional Ballot Case: What Is Going On?

It is not a high profile race. But it may create a high profile precedent.

It is the 2010 general election for a judgeship on the juvenile court in Hamilton County, Ohio (where Cincinnati is). The legal dispute concerns whether or not to count some provisional ballots that could determine the outcome of this race. As it stands, the Republican candidate, John Williams, is ahead by 23 votes of his Democratic opponent Tracie Hunter, but the federal district court (Judge Susan Dlott) has ordered the counting of some 150 or so of the disputed provisional ballots with the possibility of requiring the counting of even more depending on the outcome of further court-ordered investigation.

The federal district court based its order squarely on the Equal Protection precedent of Bush v. Gore. The relevant facts are somewhat technical and complicated, but if this order prevails—if, in other words, it is not overturned by a higher federal court—it will itself become an important additional precedent on the meaning of Bush v. Gore (and thus on the scope of Equal Protection in the context of ballot-counting disputes).

Even more intriguing, this dispute appears to have the potential of forcing the U.S. Supreme Court itself, or at least one of its Justices (indeed, its newest member, Justice Elena Kagan), to weigh in on how the precedent of Bush v. Gore applies to other elections besides the one in which it arose (which was, of course, the 2000 presidential election).

I hasten to say that, at this point, the dispute is at least several steps removed from requiring U.S. Supreme Court action touching upon the meaning of Bush v. Gore. Events easily could unfold in a way that would avoid that necessity; indeed, one would have to say that the likelihood is that the dispute will end up going down one path or another that would cause the U.S. Supreme Court to see no need or reason to get involved.

Still, as it has developed thus far, the dispute has reached the point that there is a nontrivial possibility of requiring the U.S. Supreme Court to speak on the meaning of Bush v. Gore. Therefore, it is worth spending some time to understand what is going on in this dispute and how it got even to this point.

The federal district court’s Equal Protection ruling was based on a comparison of two groups of provisional ballots affected by official error. The first group is 27 ballots that were cast at the Board of Election’s downtown headquarters (as voters are permitted to do under Ohio law). With respect to these ballots, the Board of Election’s staff made a mistake and gave the voters the wrong ballot for their precincts. When the Board of Elections discovered this mistake, it decided to count the ballots because the voters themselves had done nothing wrong.

The second group of ballots is a much larger number of those that were cast, not at the Board’s headquarters, but at neighborhood polling locations. The problem with this group of ballots arose because these particular polling locations were ones serving multiple precincts. Picture a single high school gymnasium, for example, serving three different precincts on Election Day. Each precinct has its own table in a different part of the same gym. Under Ohio law, voters in this situation are supposed to find their way to correct table in the gym (one could debate whether it is reasonable to expect voters to do so), but poll workers are also supposed to direct voters to correct table when voters show up at the wrong one.

According to the federal district court, there are at least some ballots for which poll workers have admitted that they mistakenly did not direct voters to the correct table and, as a consequence, the voters cast provisional ballots at the wrong table--and thus the wrong precinct--although they were in the correct polling location (a situation which some in the election administration field call the “right church, wrong pew” problem). For example, the federal district court stated specifically, “seven poll workers interviewed admitted that they made a mistake in processing the ballot by misidentifying the voter’s correct precinct.” (The court’s own emphasis.) Furthermore, according to the court, “[t]he evidence shows that . . . 149 ballots were cast in the right location/wrong precinct due to poll worker error in determining whether the street address was located inside the precinct.”

Based on this factual finding, the federal district court then made the legal determination that these two groups of ballots affected by official error are equivalent for Equal Protection purposes under Bush v. Gore. Here is how the district court put it:

“Standing in the face of this evidence, it is just as clear that the above-described provisional ballots were disqualified due to poll worker error as it was that the 27 provisional ballots cast at the Board of Elections building were cast in the wrong precinct due to poll worker error. To treat these groups of provisional ballots differently when they are the same for the purposes of being improperly cast due to poll worker error violates voters’ right to equal protection under the law. Because the Board has already counted certain provisional ballots cast in the wrong precinct due to poll worker error, the remaining ballots that fall in the same category must be counted.”

And lest there be any doubt that federal district court was relying on Bush v. Gore as the key precedent for its Equal Protection ruling, elsewhere in its opinion the court emphatically declared that “herein lies the crux of the matter: to count some provisional ballots disqualified because of poll worker error and not to count other provisional ballots disqualified because of poll worker error violates the fundamental premise that ‘equal weight [be] accorded to each vote and . . . equal dignity owed each voter.’ Bush v. Gore, 531 U.S. at 104.”

To be sure, one might argue that the two groups of ballots that the federal district court found equivalent are not quite as “apples to apples” as the hanging chads in Bush v. Gore. There, the problem according to the majority of the U.S. Supreme Court was that chads that were physically identical—equally hanging, or dimpled, or punctured, or what-have-you—were being treated differently (counted or not counted) depending upon which county the ballot was cast in (Palm Beach, Miami-Dade, Broward, etc.), or perhaps even depending upon which counting team within a single county happened to review the particular ballot. Here, in the Hamilton County case, the difference between casting a ballot at the Board of Elections headquarters versus casting it in a neighborhood polling location with multiple precincts arguably permits some further legal analysis as to whether the Bush v. Gore precedent should apply. For example, whereas voters at the Board of Elections headquarters were perhaps at the complete mercy of the staff in terms of receiving the correct ballot to cast (although maybe a super-diligent voter could have caught the mistake and got the staff to correct it?), arguably voters at the multiple-precinct neighborhood polling locations could have been extra careful to get themselves at the correct table, even if the poll worker error contributed to their inability to do so (although if a poll worker tells a voter “yes, you are at the correct table for your own precinct although we can’t find you in our poll book,” is a voter really supposed to insist “no, I should go to that different table over there”?).

If not “apples to oranges” in the Hamilton County case, maybe it’s “McIntosh to Granny Smith.” Part of the difficulty of applying Bush v. Gore as a precedent—without further guidance from the U.S. Supreme Court—is that it is so hard to know what qualifies as relevant or irrelevant in terms of making ballots equivalent for the purposes of requiring them to be treated equally. Still, even apart from the domain of Bush v. Gore itself, there is the general background principle of Equal Protection law that state government must be justified whenever it differentiates among voters who cast ballots for the same elective office. Therefore, even if staff mistakes made at the Board of Elections headquarters are somewhat different factually from mistakes made by poll workers at multiple-precinct neighborhood polling locations, the key question for Equal Protection purposes is whether the government can articulate a sufficiently cogent reason to warrant counting the ballots notwithstanding the official error in the one circumstance but not counting them in the other. Based on reading the federal district court’s opinion, it is not clear that Ohio's government (here acting through the county board of elections) has articulated any reason yet to justify the distinction.

“We count these ballots but not those ones because …” Equal Protection law always will entertain what the state has to say in its defense after “because,” but the state must say something—and what the state says must be worthy of the differentiation. Bush v. Gore itself relied on this general background Equal Protection principle.

One could analyze the Equal Protection issue in this Hamilton County case at considerably greater length, and in doing so bring into the analysis many more factual details and nuances. Nonetheless, the above should suffice to get the gist of the issue.

The more interesting aspect of the case at this point is this question: how is it possible that the U.S. Supreme Court would be forced to get involved? After all, nothing about the basic features of the case cries out for Supreme Court review. On the contrary, this kind of case is one that Supreme Court clerks are trained to identify as “fact-bound,” meaning that their particular circumstances are unlikely to arise in another context and therefore it would be hard for the Supreme Court to issue a general edict of federal law using this case as a vehicle.

Here’s how. The Ohio Supreme Court already has weighed in on the same dispute. The state’s highest court issued a ruling several days before the federal district court did, and the two rulings are in significant tension with each other (to put it mildly). If the federal court of appeals upholds the federal district court’s order, and if the Ohio Supreme Court does not acquiesce in the federal court’s order, then the only institution available to resolve the conflict is the U.S. Supreme Court.

A lot of “ifs” there. Maybe the federal appeals court will repudiate the district court’s Equal Protection ruling based on Bush v. Gore. That development in the dispute would obviate any conflict with the Ohio Supreme Court’s decision and thus remove any reason for the U.S. Supreme Court to become involved. Or, conversely, maybe the Ohio Supreme Court will back down, saying that it should defer to the federal court’s understanding of federal Equal Protection. That development, too, would enable the U.S. Supreme Court to stay out of the case.

But the Ohio Supreme Court has already signaled that it is not inclined to back down, even though the dispute ultimately turns on an issue of federal Equal Protection law. In its own ruling, after declaring that Ohio law does not permit the counting of provisional ballots cast in the wrong precinct even when poll worker error is responsible for this occurrence, the Ohio Supreme Court acknowledged that there still remained a federal Equal Protection question on whether these ballots must be counted notwithstanding the prohibition of doing so under state law. But the Ohio Supreme Court saw no Equal Protection problem in refusing to count these ballots. On the contrary, the state supreme court seemed to think it would be a greater Equal Protection problem to count them, because there would be no equivalent remedy for similar poll worker errors elsewhere in the state. Also citing Bush v. Gore, the Ohio Supreme Court stated “in attempting to resolve equal-protection concerns implicated by the board’s counting 27 provisional ballots cast in the wrong precinct at the board [headquarters], the [outgoing] secretary of state may have caused much greater equal-protection concerns.” The state supreme court went on to say: “And if the [outgoing] secretary’s directives requiring the questioning of poll workers for provisional ballots cast in the wrong precinct were extended to the entire state, it is doubtful that the time limits for resolving elections would ever be met.”

The time issue is, of course, a legitimate one. Vote-counting must come to an end even if it is not perfect, as it will never be. Still, it is hard to see how similar poll worker error on a statewide basis, rather than just on a county-specific basis, affects the amount of time it takes to investigate and resolve potential poll worker error. If it takes a specific number of weeks for a single county (here Hamilton County) to investigate and resolve its own poll worker error, the other counties in the state can do the same thing in the same amount of time—or at least be held to the same deadline.

Moreover, the Ohio Supreme Court seemed mistaken to think of Equal Protection in statewide terms in this case. Bush v. Gore, it must be remembered, involved a statewide election. Voters in Palm Beach, Miami-Dade, Broward, and all the state’s other counties were equally voting for president (or, to be technical, their state’s presidential electors). Therefore, hanging chads in Palm Beach, Miami-Dade, and Broward—and all the other counties—needed to be treated equally.

But here the race for juvenile judge in Hamilton County is confined to voters in Hamilton County. Voters in other Ohio counties don’t get to cast ballots in this race. Therefore, even assuming there were some poll worker error in other Ohio counties, as there surely was, leaving that poll worker error unremedied in this litigation does not cause an Equal Protection violation with respect to vote counting in this election. As long as all Hamilton County voters who cast ballots in this race are treated equally according to the requirements of Equal Protection, then the demands of Equal Protection are satisfied in this litigation. There is no statewide race in Ohio that is currently the subject of a vote-counting dispute, and so none exists that could be affected by a remedial order concerning the Hamilton County election. And insofar as there is litigation affecting other countywide races in other parts of Ohio (Lucas County, where Toledo is, faces similar issues), making sure that voters there receive Equal Protection with respect to each other can be handled in separate litigation. Thus, it would seem that the Equal Protection issue in the Hamilton County dispute is confined to whether similarly situated Hamilton County voters have been treated equally—meaning whether poll worker error in Hamilton County must be rectified in the context of ballots cast in neighborhood polling locations with multiple precinct, because official error has been rectified with respect to ballots cast at the Hamilton County Board of Elections headquarters.

In any event, whether or not the Ohio Supreme Court is correct in its views on how Equal Protection and Bush v. Gore apply to this Hamilton County dispute, the state supreme court was absolutely clear in asserting its authority to decide federal Equal Protection questions for itself, even if the federal district and/or appeals court might decide the very same Equal Protection questions to the contrary. In rejecting an argument that it should stay out of this dispute because the federal judiciary was already involved, the Ohio Supreme Court pronounced: “we are not bound by rulings on federal statutory or constitutional law made a federal court other than the United States Supreme Court.” (Here the court was quoting one of its own earlier opinions.) The court added that it would “accord those decisions some persuasive weight.” But the state supreme court did not say that it would accept a lower federal court order requiring the counting of ballots that it believed must not be counted.

To be precise, the existing Ohio Supreme Court ruling does not go so far as prohibiting the counting of any disputed ballots (although the reasoning of that ruling does). Technically, the Ohio Supreme Court’s order prevents further Hamilton County Board of Election investigation of whether poll worker error affected some of the disputed ballots (and the order also rescinds some previous directives issued by the outgoing Secretary of State). Thus, even if the Sixth Circuit upholds the federal district court’s order to count certain of these disputed ballots, the Hamilton County Board of Elections seemingly could comply with the federal district court order without (strictly speaking) being in violation of the state supreme court’s existing decree. And presumably the U.S. Supreme Court will stay clear of this case as long as there is even be a little bit of wiggle room between the two court orders, so that the Hamilton County Board of Elections can comply with the federal district court order without being in contempt of the Ohio Supreme Court.

But it is possible to imagine the litigation moving back to the Ohio Supreme Court if the federal appeals court upholds the federal district court order. Either John Williams, the Republican candidate, or the Hamilton County Board of Elections, or another party to the previous Ohio Supreme Court ruling, could ask the state supreme court for further relief—specifically an order (probably styled as a writ of mandamus) requiring that the board obey state law not to count the disputed ballots. If the state supreme court granted that request, then a direct conflict between the two judicial orders would exist. In this situation, the federal judiciary would be ordering the board to count ballots that the state supreme court simultaneously was ordering the board not to count—and both orders would be based on the two court’s opposite interpretations of Equal Protection and Bush v. Gore. Assuming again that the federal appeals court has upheld the federal district court order that is in direct conflict with the state supreme court order in this situation, then there is nowhere for the board to turn but the U.S. Supreme Court. As much as the Justices of that Court might wish to avoid wading into the merits of a dispute over the meaning and scope of Bush v. Gore, I cannot imagine them leaving an agency of state government—the Hamilton County Board of Elections—subject to directly conflicting judicial decrees such that the board officials are in contempt of one court if they obey the other (and vice versa). As the hierarchical apex of both the federal and state judiciaries on issues of federal constitutional law, the U.S. Supreme Court exists to resolve this kind of direct conflict in the rare circumstances that it arises.

Were the direct conflict to arrive at the U.S. Supreme Court in this way, procedurally it would be handled in the first instance by the single Circuit Justice with jurisdiction over the particular federal court of appeals in this case. With Ohio being within the Sixth Circuit, that Justice is the newest one: Justice Elena Kagan. (The Circuit assignments of the Justices are here.) Under the Court’s procedures, if faced with an application for an emergency order that would resolve the direct conflict one way or the other, she could decide to grant or deny the application herself or refer the matter to the full Court of nine Justices. The Court could choose to handle the case in stages: an initial emergency decision that would freeze the status quo one way or the other (to count the ballots or not), with a later stage devoted to full briefing and oral argument on the merits. Or the Court could attempt to resolve the case entirely in one expedited proceeding. The Court has used both approaches in previous election cases. If confronted with this procedural choice, perhaps the Court and the electoral systems of all the states would benefit from full briefing and oral argument on an issue concerning the application of the Bush v. Gore to a new vote-counting dispute. Divorced from the pressure of a presidential election (which undoubtedly required expedited consideration), the normal course of briefing and oral argument would give the Court the opportunity to develop a more robust account of how Equal Protection governs these disputes. As we have seen from elections since 2000, including both the Coleman-Franken and Murkowski-Miller U.S. Senate disputes, questions concerning the meaning of Bush v. Gore arise with enough frequency that it would be advantageous if the Court gave its considered judgment to one such new case. This one from Hamilton County, even though it is a low-profile election, is just as good as any other.

Of course, it may never come to this in the Hamilton County case. No direct conflict may arise that requires the U.S. Supreme Court’s involvement, and thus the Court may continue to be able to avoid confronting any need to further explain Bush v. Gore. But, for the reasons I’ve explained, this particular dispute has gotten far enough along that it raises the realistic possibility that the Court may be able to avoid wrestling with Bush v. Gore no longer. I did not think this kind of situation would arise so soon, only a decade later. But if Bush v. Gore itself was a surprise, then maybe the second U.S. Supreme Court precedent in the Bush v. Gore line of Equal Protection jurisprudence will prove to have been equally unexpected.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile

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