arrowSection 5.4 - Provisional Voting

This topic is monitored by Moritz Law Professor Daniel Tokaji

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Federal Court in Ohio Rules: State Must Permit Provisional Ballots in Wrong District

Judge James Carr, a federal judge in Toledo, ordered Secretary of State Ken Blackwell to develop a new directive that would permit Ohio voters who show up at the wrong precinct on November 2 to cast a provisional ballot under the new Help American Vote Act (HAVA), adopted by Congress.

Judge Carr further ruled that Ohio must count these ballots in all statewide races, including the presidential race, if the voter is registered elsewhere within the same county.

Judge Carr’s ruling is at odds with a recent decision of a federal court in Missouri, which had upheld that state’s requirement that voters cast their ballots in the correct precinct, although Judge Carr took pains to distinguish the Ohio case from the Missouri one. Missouri has enacted a statute specifically to address the so-called “wrong precinct” problem, whereas Ohio had not, and the circumstances in which a Missouri voter would be turned away were narrower.

Similar litigation is pending before the Florida Supreme Court and in other states.

Judge Carr based his decision on the meaning of the word “jurisdiction” in HAVA, saying that it corresponded to the use of the same term in the federal Motor-Voter law, and therefore meant county rather than precinct. Judge Carr considered evidence in the legislative history that pointed to the opposite conclusion, including evidence analyzed by Election Law @ Moritz, but ultimately determined that this legislative history was inconclusive – and insufficient to override what he perceived to be the clear meaning of the statutory language.

The Secretary of State has announced that he will appeal this decision.

[Posted October 14, 2004]