Posted: August 27, 2012
The Court's Provisional Ballot Ruling: Preliminary Analysis
A federal district judge has issued a preliminary injunction concerning the counting of provisional ballots in Ohio. The order has two components. The first, and more significant in terms of the number of ballots likely to be affected, concerns so-called “wrong precinct” provisional ballots—where a provisional voter cast a ballot for a precinct other than the one in which the voter resides. The second concerns mistakes made when filling out the provisional ballot envelope.
With respect to the “wrong precinct” ballots, the court’s order requires these ballots to be counted unless several conditions are met: first, the poll worker must direct the voter to the correct precinct and tell the voter that the provisional ballot will not count; second, the voter must refuse to go to correct precinct and insist, instead, on casting the invalid ballot; and third, the local board of elections must confirm that the poll worker sent the voter to the correct precinct. The order makes clear that it is the board’s burden to establish these conditions; otherwise, the ballot must count for all items on the ballot “for which the voter would have been eligible to vote if he/she had cast the ballot in the correct precinct” (page 57). With respect to the mistakes in filling out the provisional ballot envelope, the ballot must count despite the mistake if the local board of elections is “otherwise able to determine that the voter is a registered voter” (id.)
The court based its ruling on a finding that for Ohio to disqualify a ballot in these circumstances would likely violate the Equal Protection and Due Process Clauses of the U.S. Constitution. The court relied on (page 25) undisputed evidence that in recent yearsstatewide there have thousands of ballots for which the voter arrived at the correct polling location, but ended up casting a “wrong precinct” ballot because of poll worker error—the so-called “right church, wrong pew” problem, where several precincts share the same polling location. (The court cited the figure of 14,335 from 2008, the last presidential election, as well as the more recent figures from 2010 and 2011: 5,309 and 3,380, respectively.) The court credited (page 28) the Secretary of State with taking administrative measures designed to reduce the number of “wrong precinct” ballots in the upcoming 2012 general election, but determined that these measures were insufficient to avoid the need for an interim measure to assure that there would be no wrongful disenfranchisement in November. Central to the court’s reasoning was the fact that “[e]very documented instance in the record of a correct location/wrong-precinct ballot being disqualified was the result of the poll-worker failing in his or her statutory duty to ‘ensure that voters are given the correct ballot and vote in the correct precinct.’” Page 29 (quoting Hunter).
The court acknowledged that not every “election regulation [must] satisfy strict scrutiny simply because violating it results in the loss of the right to vote” (page 31). But the court maintained that “the reasonableness of the law” must be determined by its “particular burden on the individuals” it affects, not based on its aggregate impact on the voting system as a whole (id). For this reason, the court stated that the relevant constitutional analysis was the effect of Ohio law on those voters “who arrive at the correct polling place but are misdirected due to poll-worker error” (p.34). According to the court, the state offered no sufficient justification for why it must disenfranchise voters in this particular situation. Since the plaintiffs’ requested relief, as well as the court’s actual order, was limited only to those ballots affected by poll-worker error, the state could satisfy its legitimate interests by disqualifying those provisional ballots for which it could show that the voter was responsible for the problem.
The court emphasized that every provisional ballot rejected because of poll worker error was cast by a lawfully registered voter, who was qualified to participate in at least the statewide and other “up ballot” items in the election. This fact meant that the rejection could be viewed under a more stringent strand of the Supreme Court’s voting rights jurisprudence. The court saw an “invidiousness” in rejecting the ballots of valid voters when the reason for the invalidation was the government’s own mistake.
Turning to the other category of provisional ballots, the ones with mistakes on the provisional ballot envelopes, the court observed: “Any provisional ballots cast containing these sorts of technical deficiencies necessarily involves poll-worker error because it is the poll worker’s duty to ensure that provisional ballots are cast with a validly completed ballot envelope and affirmation.” Page 43 (citing Ohio’s statutory provision). Therefore, even though the voter may have made the clerical mistake in the first place, the court saw the poll worker under an obligation to correct the mistake. The court recognized that while the voter could have avoided this problem in the first place—unlike the situation with the wrong precinct ballots—the court still found that the state lacked sufficient justification for invalidating the ballot when it knew it could identify the voters as eligible and registered.
The state is likely to appeal this order to the Sixth Circuit. There will be time for further reflection and analysis on the merits of the case, even if it moves quickly on appeal. I have already indicated my judgment that the disenfranchisement of “right church, wrong pew” ballots should be viewed as unconstitutional, because in this situation valid voters did all that reasonably could have been expected of them in arriving at the correct polling location. To that extent, my views are in sync with today’s order. Perhaps the order might have been written a little differently in some paragraphs here or there, but such details do not change its essential nature. I wish to give more thought to the second part of the case—the issue of disqualifying provisional ballots with mistakes on the envelopes—because the balance of competing considerations arguably weighs somewhat differently on that point. There the voters could have done more, even if the poll workers also bear some of the responsibility. Still, the court is right to ask whether it is warranted to reject the ballot even in that context, when the state can easily ascertain the voter’s validity as eligible and registered. Helpful to this issue is Justin Levitt’s “materiality” analysis, which although not cited by the court seems to be the underlying nature of the court’s reasoning.
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