Posted: January 17, 2011
Ohio Provisional Ballots: Do Two Wrongs Make a Right?
Ned Foley thoroughly and admirably summarizes the current dispute surrounding the election for Hamilton County Juvenile Court Judge. (If you have not yet reviewed his analysis, read his post before continuing on.) As Ned sees it, the conflict is potentially heading toward U.S. Supreme Court resolution, which would require the Court to expound upon Bush v. Gore as an Equal Protection precedent.
But there could be a way out for the Court, which is likely loathe to reopen Bush v. Gore, a case it explicitly confined to its unique facts: the Court could ask for clarification on Ohio law regarding whether the Board of Elections must continue to count the 27 provisional ballots cast at the Board’s headquarters. If a plausible interpretation of Ohio law provided that the Board of Elections could “uncount” these ballots, using proportionate reduction to remove these votes from the totals, then the Equal Protection issue that was the predicate for Judge Dlott’s Bush v. Gore ruling would be gone from the case. In essence, the Court would be opening up an escape route from Bush v. Gore’s tentacles by letting Ohio law provide an equivalence of not counting the two groups of ballots under consideration. Everyone agrees that including the 27 ballots in the final count violates Ohio law. Why, then, should the Court require the counting of additional provisional ballots – which would also violate Ohio law – to remedy the first violation? Do two wrongs (that is, two violations of Ohio election law) make a right so as to effectuate Equal Protection?
There is little dispute that the Board of Elections erred under Ohio law by counting the 27 provisional ballots cast at the Board of Elections headquarters. Ohio law unambiguously states that the Board of Elections may only count ballots cast in the correct precinct. Indeed, as the Ohio Supreme Court recognized, Ohio law does not provide any exception for when a voter casts a ballot in the wrong precinct due to poll worker error.
Admirably seeking not to disenfranchise any voter, however, the Board of Elections decided to count these 27 ballots. After including these votes, it appears that the Board commingled them with all of the other ballots, meaning that it is now impossible to go back and physically pull out the 27 ballots that the Board never should have counted in the first place.
The second group of problematic provisional ballots are those cast on Election Day at the correct polling place but at the wrong precinct – the 149 provisional ballots subject to the federal district court’s order. Enter the potential Equal Protection violation. Because the Board decided to count the 27 provisional ballots cast incorrectly due to poll worker error at the Board’s headquarters, to treat all provisional ballots the same, the theory goes, it should also count the 149 provisional ballots cast incorrectly due to poll worker error at the polling places.
But counting these 149 ballots would also violate Ohio law. As explained above, the Ohio statutes are clear: a vote is invalid if cast at the wrong precinct, even if due to poll worker error. In essence, the federal district court ordered the Board to contravene Ohio election law a second time to remedy the potential Equal Protection violation.
Is ignoring Ohio law again the only way to avoid an Equal Protection problem? Or might there be another solution that would allow the Board to comply with the Ohio Supreme Court’s directive (in essence not to count the 149 votes) and also remain consistent with the requirement of equal protection? I think there is: undo the initial violation of Ohio law by not counting (or “uncounting”) the 27 ballots.
But that is impossible, right? Although we do not know for sure, Judge Dlott’s order strongly suggests that the Board has commingled these votes with all other ballots in this election. We cannot physically remove them from the stack of proper ballots. Here is where the Board, and the courts, can take a mathematical leap of faith: they can use statistical analysis to determine the likely percentage of votes each candidate received from these 27 ballots and reduce the vote totals accordingly. In election law parlance, the courts can use proportionate reduction. Say, for instance, that 10 of the 27 ballots came from a particular geographic area in Hamilton County, and that the Republican candidate won 60% of the votes in that area. The Board would then presume that 6 of these 10 votes went to the Republican candidate and would reduce the vote totals accordingly. Even if the court cannot discern where the voters came from who voted at the Board’s headquarters, it could use the results of similarly situated voters – those who also voted at the Board’s headquarters (albeit in the correct precinct) – as the proper percentage for proportionate reduction.
Sound absurd? It’s not. For example, proportionate reduction of illegal votes is “well established” under Illinois law. See In re Durkin, 700 N.E.2d 1089, 1095 (Ill. 1998). In the 2004 Washington State gubernatorial election contest the court considered employing proportionate reduction of illegal votes before rejecting it under the circumstances of that case. I could not find any Ohio election cases discussing proportionate reduction of illegal votes, but that does not mean that the courts cannot use it in this instance. Given that the case is currently in federal court, the Sixth Circuit could either remand to the district court to determine whether proportionate reduction would cure the Equal Protection problem or could certify the case to the Ohio Supreme Court for its consideration of this issue. That is, the court could, without passing upon whether counting one set of votes but not the other would violate Bush v. Gore, determine that not counting both groups of provisional ballots is consistent with Equal Protection.
To be sure, there are myriad problems with using proportionate reduction. For one, it may be unclear exactly where these voters are from, so it is difficult to determine precisely what percentage to use in allocating the reductions between the candidates. But the current margin in this race largely mitigates this problem: the Republican candidate is up by 23 votes, and there are 27 votes to remove. Given the closeness of this election, it is highly unlikely that the 27 voters at issue all broke for one candidate or the other. Although that is theoretically possible, as a practical matter it is much more likely that these voters split their votes somewhat – meaning that reducing the vote totals proportionately would not change the outcome of the election. The public can have confidence that using proportionate reduction would reflect the true winner of legal votes cast.
The larger problem is the disenfranchisement of 27 voters who believed they had cast proper ballots at the Board’s headquarters. But that is a problem inherent in Ohio law, not in any Board or court action. Perhaps the Ohio law requiring votes to be cast at a voter’s correct precinct, with no exception for poll worker error, makes little sense and leads to voter disenfranchisement. Indeed, that law seems draconian when a voter does all he or she can in an attempt to cast a valid vote and a poll worker’s mistake thwarts that effort. The law also could pose its own Equal Protection problem: perhaps refusing to count votes cast improperly solely due to poll worker error violates these voters’ fundamental right to vote, because they did all they could to cast a valid ballot. So maybe one of the voters should bring an Equal Protection challenge to the provisions of Ohio law that fail to include an exception for poll worker error. If a court strikes down this law, then there is no impediment to counting either the 27 or the 149 provisional ballots. This too would eliminate the Bush v. Gore problem: the law would require the counting of both groups of votes. I certainly would advocate for rules that, at bottom, lead to greater enfranchisement so long as a voter’s intent is clear. If there is a problem of voter disenfranchisement, however, it is one of Ohio’s own making, and if that law itself violates Equal Protection, then the courts should strike down that law in appropriate litigation.
In the end, then, the Supreme Court can avoid a difficult Bush v. Gore interpretation by requiring the lower courts to consider following Ohio law (as it stands right now) and prohibiting the counting of both the 27 provisional ballots cast at the Board’s headquarters and the 149 provisional ballots cast at polling places on Election Day. This result certainly may seem unfair to those voters who valiantly attempted to cast a proper ballot. I agree that Ohio law should allow for the counting of votes cast incorrectly solely due to poll worker error. But the Ohio legislature has chosen the opposite approach. If the U.S. Supreme Court is faced with conflicting federal and state court opinions that could require it to interpret Bush v. Gore, it might instead conclude that proportionate reduction of the 27 votes can undo the initial violation of Ohio law, thereby nullifying any disparate treatment among the provisional ballots. Let me be clear: I am not advocating this result as the best way to protect voters’ rights or resolve this election contest. I am instead positing that it is a possible route the Court might take if it truly wishes to avoid invoking Bush v. Gore. Instead of requiring a second violation of Ohio law, it might suggest the use of proportionate reduction to undo the first violation. That is, to avoid Bush v. Gore, it could conclude that two wrongs do not make a right.
Joshua A. Douglas is an Assistant Professor of Law at the University of Kentucky College of Law. His area of specialty is election law. View Complete Profile