Posted: January 19, 2011
Questions for Counsel in Ohio’s Provisional Ballot Case
Oral argument in the Sixth Circuit federal court of appeals is just a few hours away. Having read the briefs filed in this expedited appeal, I found myself wanting to ask the attorneys for both sides (those supporting and opposing the counting of the disputed ballots) the following questions. I’m sure that there are many additional lines of questioning worth pursuing at the oral argument, and indeed all these questions presume that the Sixth Circuit (like the federal District Court) has jurisdiction to rule one way or the other on the merits of the federal constitutional questions presented in this case. I certainly can understand why the Sixth Circuit panel opinion that stayed the District Court’s order characterized this case as “difficult”; were I a judge, having read the briefs, I would be heading into oral argument genuinely uncertain as to which side should prevail on the merits (again, assuming jurisdiction)—and how I ultimately resolved my uncertainty might depend on the answers that the attorneys gave to these or similar questions.
1. With respect to the 27 ballots cast at Board headquarters (or is it 26, or 31, and does the exact number matter to the legal issues on appeal?), would it be physically possible to “uncount” them, assuming that were appropriate under the law—or have they been irretrievably commingled with the rest of the counted ballots in this election? At least two of the Sixth Circuit briefs (those filed by Appellants) suggest that uncounting would be physically possible, although the District Court perhaps appeared to suggest otherwise; is there a way to determine the factual status of this point for purposes of this appeal?
2. If Ohio law calls for uncounting the 27 ballots (see above), would federal constitutional law (Equal Protection or Due Process) invalidate that state-law conclusion on the ground that the voters did nothing wrong and therefore were equally entitled to have their votes counted as any other eligible voter casting a ballot at the Board’s headquarters?
3. Is 149 the correct number with respect to the “wrong precinct” ballots that the District Court believed were subject to poll worker error based on evidence in the record (apart from 7 other ballots for which a poll worker admitted error)? If not, what is the correct number and how is it determined? Exactly what is the evidence of poll worker error with respect to these ballots, and was the District Court entitled to rely on this evidence (and why or why not)?
4. Assuming arguendo that this number is 149 and that there is some evidence of poll worker error with respect to them, is it also possible that (unlike for the 27 ballots cast at the Board) the voters themselves could have taken steps to protect themselves against this poll worker error, by knowing their correct precinct and making sure that they voted at the correct table for their precinct? If, so would that make these ballots sufficiently different from the 27 that Equal Protection would not require them to be treated the same?
5. What if a voter goes to the correct table for her precinct in the right location, but the poll worker mistakenly tells the voter that she is at the wrong table and that her ballot won’t count if cast at that table and therefore she must go to another table in the same location; she follows this mistaken instruction—does so under protest—and casts a provisional ballot at the table where she was mistakenly directed; is this ballot any different for Equal Protection purposes from the 27 cast at the Board’s headquarters where the Board’s staff made the mistake? In this particular situation, is there anything that the voter could have done to avoid the mistake; and if not, isn’t that just like the situation with the 27 cast at the Board? If the 27 remain counted, would Equal Protection also require that this particular ballot be counted?
6. With respect to the 149 (assuming again that is the correct number), what if it is unknown whether the voters could have—or could not have—taken any steps to prevent poll worker error from affecting their ballots? Consistent with Equal Protection, is a state entitled to limit the amount of time and effort undertaken to figure out exactly what happened with respect to each ballot; and as long as all ballots are subject to the same limited investigative inquiry (and the same standards regarding the presumption of non-error by poll workers) are the demands of Equal Protection satisfied?
7. When, if ever, does the federal Constitution require states to correct inadvertent errors committed by government officials in the casting and counting of ballots? For example, we know that optical scan voting machines (which presumably do not violate Equal Protection in their ordinary usage) have some inevitable degree of error rate in counting the ovals filled in by voters (the so-called “overvotes” and “undervotes” attributable to machine error). In many elections where these machines are used, no manual recounts are conducted—and therefore these machine errors are never rectified—and yet presumably the lack of a recount (without some additional facts) does not violate Equal Protection. Is poll worker error different from machine error in this respect? But conversely if some ballots cast in a particular election are subject to a recount, whereas others in the same election are not—so that some of these machine mistakes are corrected, but others are not—would this give rise to Equal Protection concerns? Does this case ultimately come down to whether the two sets of ballots (the 27 and the 149, to use those numbers) were, or were not, subject to the same error-identification-and-correction standards and procedures? Or, instead, because they were cast in different ways (the 27 at Board headquarters, and the 149 at multiple-precinct neighborhood polling locations), perhaps they do not need to be subject to the same error-identification-and-correction standards and procedures (just as DRE touchscreen ballots are not necessary subject to the same recount procedures as optical scan ballots, when both are used in the same election)?
8. If irrefutable evidence comes to the Board’s attention that poll worker error was solely responsible for why a particular voter cast a ballot at the wrong table, even though the Board was not obligated to conduct an investigation to uncover that evidence—or perhaps even if conducting that investigation was contrary to the procedures that the Board was supposed to follow—must the Board count the ballot to protect the voter from wrongful disenfranchisement caused by the Board? If yes, is there a time limit beyond which wrongful disenfranchisement of this sort no longer can be corrected, at least not by adjusting vote totals to determine which candidate is seated in office?
9. Is there any reason to believe that poll worker error with respect to provisional ballots has a systematic effect on voters and candidates of one political party rather than another, or instead is there is reason to believe that these errors are randomly distributed among voter and candidates regardless of party (and therefore tend to cancel each other out)? Does the answer to this question, either one way or the other, have an effect on the proper analysis of the Equal Protection issues in this case?
10. Does the intentional decision of the Ohio Supreme Court (or the Board) that the disputed ballots should not be counted under Ohio law satisfy the “intent” requirement of Equal Protection law, or is the relevant “intent” inquiry at the level of the poll workers (or Board staff members) who inadvertently made a mistake with respect to some ballots? What role does “intent” play in those Equal Protection cases that fall within the scope of Bush v. Gore analysis?
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