OSU Navigation Bar

Election Law @ Moritz Home Page

Election Law @ Moritz

Election Law @ Moritz


2008 Key Questions for Key States

Ohio

The complete research by Election Law @ Moritz for Ohio can be found below.

Institutional Arrangements

State Chief Election Authorities

Elected individual (D)

Chief election authority: Secretary of State. § 3501.04.

Method of selection: Elected. § 111.01.

Current officer: Jennifer Brunner (D). Battle over party chair might cost $350,000, Akron Beacon Journal, December 23, 2007. (Last updated 1/1/08)

State High Court Composition

R heavy/elected

Method of selection: Election. Const. Art. IV, § 6.

Justices: Thomas J. Moyer (R), Paul E. Pfeifer (R), Evelyn Lundberg Stratton (R), Maureen O’Connor (R), Terrence O’Donnell (R), Judith Ann Lanzinger (R), Robert R. Cupp (R) (Last updated 12/22/07)

Sources:

  • Primary loss may help Petro rise again, Dayton Daily News, September 2, 2007.
  • Gillmor helped revive Ohio GOP, Dayton Daily News, September 16, 2007.
  • Court rules that Taft can limit public access to some data, The Blade (Toledo), April 14, 2006.
  • Lack of support, Columbus Dispatch, November 19, 2006.  

Local Administrator Training

Other training/mandatory

The Secretary of State will establish a training program for members of the local Boards of Elections and their employees. ORC 3501.27. These individuals will complete the training program within six months of assuming their positions, and will complete it again once every four years or more, as determined by the Secretary of State.

 

Who tallies precinct results?

Local election authority - bipartisan

The county board of elections canvasses precinct results. ORC 3505.33.  The county board of elections consists of four members appointed by the Secretary of State. ORC 3501.06.  Two of the members must come from each of the major political parties.

Who counts provisional ballots?

Local election authority - bipartisan

The county board of elections determines whether to count provisional ballots. ORC 3505.183.

Who performs state canvass?

Secretary of State - elected

The Secretary of State performs the state canvass.  ORC 3505.35. The canvass occurs in the presence of the governor, auditor of state, attorney general, and the chairman of the state central committee of each political party.

Local Administrator

County board - bipartisan

Ohio elections are run by county boards of election. The Secretary of State appoints four members to each board on an evenly bipartisan basis and the boards hire a professional director and deputy director to run elections. ORC 3501.06, 3501.09. The director must be of the opposite party from the deputy director and the chairperson of the board.

Local Administrators' Party Affiliation

Unknown affiliation/appointed

County Population Administrator Selection
Cuyahoga 1,351,009 N/A (bipartisan board) ES&S Model 100 (OS)
Franklin 1,088,971 N/A (bipartisan board) ES&S iVotronic (touchscreen)
Hamilton  814,611 N/A (bipartisan board) Hart eScan (OS)
Montgomery 550,063 N/A (bipartisan board) Premier AccuVote-TSX (touchscreen)
Summit 547,314 N/A (bipartisan board) ES&S Model 100 (OS)
Lucas 450,632 N/A (bipartisan board) Premier AccuVote-TSX (touchscreen)
Stark 381,229 N/A (bipartisan board) Premier AccuVote-TSX (touchscreen)
Butler 346,560 N/A (bipartisan board) Premier AccuVote TSX (touchscreen)
Lorain 294,324 N/A (bipartisan board) Premier AccuVote TSX (touchscreen)
Mahoning 249,755 N/A (bipartisan board) ES&S iVotronic (touchscreen)
Total 6,074,468 (53% of population)

Source: Ohio Secretary of State's website.

Voter Registration

Registration Deadline

30 days before election

Eligible voters must submit a registration application at least 30 days before the election. ORC 3503.01, 3503.10, 3503.11.

A mail registration form must be post-marked by the 30th day prior to the election or, if the post-mark is missing or illegible, received by the 25th day prior to the election. ORC 3503.19.

Notice of Registration Error

Unclear

Former ORC 3503.19(C)(1)(c) required Boards of Election to notify rejected applicants of their rejection, but that provision was removed. However, the Ohio Secretary of State's webpage still has the old requirement on its voter registration page, indicating that officials may still be following notice procedures.

Opportunity to Correct after Registration Deadline

Unclear under state law

Ohio law provides a procedure that allows voters to request up to twenty days after the deadline that they be added to the registry. ORC 3503.24. However, it is unclear whether this procedure is available for voters who submitted defective registration cards, as opposed to those who submitted correct registrations that were rejected due to administrative error. Voters who want to contest their exclusion must file an application for correction with the Board of Elections, which decides the question. No standard for deciding the question was found.

 

HAVA matching standards

Unclear

Update 10/14/08:  It is clear from current litigation and news reports that Ohio officials are performing some kind of matching program, although the standards are unknown.

Old answer:  An internal database system manual produced in January of 2008 indicates that the verification function of the database was turned off at that time (see p. 17).  The manual appears to indicate that, when the function is eventually used, it will require an exact match of driver's license or social security number, date of birth (if provided), and other fields (see p. 10).  The manual indicates that if the database cannot match these fields, it will not be able to "confirm" the voter.

A representative of the Ohio Secretary of State did not respond to to further questions regarding the matching function.

Will the inability to verify social security number or driver's license number prevent registration?

No consequence

Update 10/14/08:  It is clear from current litigation and news reports that though Ohio officials are performing some kind of matching process, the matching program currently has no consequence for voters.  Voters will not have to show any additional ID because of the matching process, nor will they be prevented from voting.

Old answer:  An internal database system manual produced in January of 2008 indicates that the verification function of the database is currently turned off (see p. 17). The manual indicates that, when the verification function is eventually used, failed matches will result in an inability of the database to "confirm" the voter. However, the practical consequence of this inability are unclear. Most states simply require the voter to present HAVA ID at the polls when their information cannot be verified, although some states (Florida) do not permit the voter to cast an ordinary ballot at all.

A representative of the Ohio Secretary of State did not respond to further questions regarding the database function.

 

Challenges

Pre-election challenges

Challenges decided by local election official

Any qualified voter in a county may challenge the right to vote of another voter in that county by filing with the local Board of Elections a special challenge form prescribed by the Secretary of State. ORC 3503.24(A). The form must state the reasons for the challenge and must be filed no later than twenty days before the election. If the Board, solely on the basis of its own records, is able to determine a voter's registration should be canceled, then the Board may cancel that registration. ORC 3503.24(B). If the Board is not able to resolve the challenge solely on the basis of its own records, it must schedule a hearing and give notice of the hearing to the voter whose registration is challenged. At the hearing, the challenged voter will have the right to testify on his or her own behalf, to call witnesses, and be represented by counsel. The challenged voters may require witnesses to attend by requesting that the Board issue subpoenas. The Board must issue subpoenas when requested. The Board shall issue its decision "immediately after hearing." If the challenge is successful, the voter's registration will be canceled.

Election day challenges

Successfully challenged voter must cast a provisional ballot

Voters and other citizens used to be able to challenge voters on Election Day, but the provision allowing that practice was removed in 2006. However, a poll worker still may challenge a voter at the polling place. ORC 3505.20. In this case, the election judge will interview the voter to determine whether he or she is entitled to vote. If the judge is satisfied with the voter's answers, he or she will allow the voter to cast a regular ballot. If the judge is not satisfied with the answers, the voter may cast a provisional ballot and attempt to cure any perceived deficiencies by providing information to the Board of elections under ORC 3505.181(B)(8).

Provisional Ballots

Provisional ballot - name not in poll book

Ballot will count if voter was registered and eligible and properly filled out paperwork

Provisional ballots will be counted if the voter was registered and eligible to vote and properly completed his or her affirmation statement with the voter's name, signature, and a statement that he or she is registered and eligible to vote.  ORC 3505.183(B)(1);(3).  Litigation is ongoing over the constitutionality of the provisional balloting law (see NEOCH v. Blackwell).

Provisional ballot - voter cast ballot in wrong precinct

Ballot will not be counted

Provisional ballots cast in the wrong precinct will not be counted. ORC 3505.183(B)(4)(a)(ii).

Provisional Ballot Casting Rate - 2006

>2 percent of ballots cast at polls

3.56%

Provisional Ballot Counting Rate - 2006

80-90 percent

83.1%

Early and Absentee Voting

Convenience Voting

Early voting and "no excuse" absentee voting

Ohio has no "early voting" option as such, but any voter may cast an in-person absentee ballot without cause as many as 35 days before the election.  ORC 3509.05.

The deadline for requesting an absentee ballot is 12 noon the third day before the election.  Completed ballots must be received by the close of polls on election day.  ORC  3509.05.

Voting Technology

Voting Technology

Mixed

County Population Administrator Selection
Cuyahoga 1,351,009 N/A (bipartisan board) ES&S Model 100 (OS)
Franklin 1,088,971 N/A (bipartisan board) ES&S iVotronic (touchscreen)
Hamilton  814,611 N/A (bipartisan board) Hart eScan (OS)
Montgomery 550,063 N/A (bipartisan board) Premier AccuVote-TSX (touchscreen)
Summit 547,314 N/A (bipartisan board) ES&S Model 100 (OS)
Lucas 450,632 N/A (bipartisan board) Premier AccuVote-TSX (touchscreen)
Stark 381,229 N/A (bipartisan board) Premier AccuVote-TSX (touchscreen)
Butler 346,560 N/A (bipartisan board) Premier AccuVote TSX (touchscreen)
Lorain 294,324 N/A (bipartisan board) Premier AccuVote TSX (touchscreen)
Mahoning 249,755 N/A (bipartisan board) ES&S iVotronic (touchscreen)
Total 6,074,468 (53% of population)

Source: Ohio Secretary of State's website.

Does state law require a VVPAT?

Yes

Ohio requires voting machines to produce VVPAT. ORC 3506.10 Ohio provides standards for the VVPAT under OAC 11:5-1-01.

Polling Place Operations

Who are poll workers?

Appointed by local administrator/some minority party representation

The county board of election will appoint poll workers. ORC 3501.22. Not more than one-half of the total number of poll workers shall be members of the same political party.

Poll worker training

Every two years

The Secretary of State will prescribe and the local Board of Elections shall establish a training program that all poll workers must complete before working at polls. ORC 3501.27. Poll workers will complete this training program at least every three years of service, and presiding poll workers will complete it every other year. Training will occur within sixty days of an election. There is nothing to prohibit the local boards from varying the program prescribed by the secretary, so not all training programs will necessarily be identical. Local boards may also re-instruct poll workers more frequently than the minimum required by the statute.

Polling hours extension

Unclear

Ohio polls "shall be opened by proclamation by the presiding judge, or in his absence by a presiding judge chosen by the judges, at six-thirty a.m. and shall be closed by proclamation at seven-thirty p.m." ORC 3501.32.

An election will not be invalidated on the grounds that voters were permitted to cast ballots after the close of polls unless it is shown that there was fraud or collusion or enough illegal votes were cast to change the result. In re Contest of Special Election at Village of Chagrin Falls, 91 Ohio St. 308, 311 (Ohio, 1915).

No other black-letter law was found. However, federal courts have extended Ohio poll hours in the 2008 presidential primary and the 2006 general election. Complaints of interference, technical problems investigated, Albany Times Union (NY), November 8, 2006. Generally, these emergency orders do not contain any substantial citation of law, but merely order that polls be kept open. It is not clear whether future courts will consider these decisions to carry any weight. See http://moritzlaw.osu.edu/electionlaw/litigation/ObamaforAmericavCuyahoga.php

Voters may vote if they are in line when the polls close. ORC 3501.32.

Polling place closing times - local times

7:30 PM local time

Polling place closing times - by Eastern time zone

7:30 PM Eastern time

Ballot Security

Voter ID requirements

Non-photo ID required

Ohio requires that registered voters present one of the following forms of identification in order to vote: 1) a current and valid photo identification; 2) a military identification (the military ID need not show name and address); 3) a copy of a current utility bill, bank statement, government check or paycheck, or other government document other than a notice of an election mailed by a board of election or a notice of voter registration. ORC 3505.18.

Consequences of failure to present ID

Voters must cast provisional ballot

If an elector is unable to provide any of the forms of identification, the elector may cast a provisional ballot.  ORC 3505.181.

Follow-up required of voter

Voter must provide SSN-4 at the time of voting or return later with ID

If the elector provides the last four digits of his or her social security number at the polls, the elector is not required to provide any further information to ensure his or her ballot will count. ORC 3505.181. Officials will examine the provisional ballot and, if they determine the voter was registered and eligible, it will count.  There is nothing in the statute that indicates whether officials must attempt to match any provided SSN-4's against registration records before deciding whether to count the ballot. A consent order reached prior to the 2006 election did not explicitly state that the SSN-4's must match, but arguably implied that the SSN-4 could be part of a "totality of the circumstances" analysis to determine whether the voter was registered and eligible (but note that this consent order applied only to the 2006 election). The most recent directive issued by the Ohio Secretary of State concerning the rules for provisional ballot counting does not mention this issue (see here).

However, if the elector declines to provide his or her social security number at the polls, the elector must, within 10 days of the election, return with one of the required forms of identification, return with the last four digits of the individual’s social security number, or return and execute a written affirmation.

Emergency Preparedness

Natural Disasters or Emergencies

No election-specific emergency provision

Ohio has no emergency provisions that would apply to elections.  However, it does have some provisions that can be helpful in the event of emergency.  For instance, all DRE voting locations must be stocked with a number of paper ballots equivalent to 10% of the historical turnout in like elections.  Directive 2008-01.  These ballots can be used, and have been used, when natural disasters damaged electronic voting machines.

Ballot Shortages

Local officials will restock

Boards of elections must supply additional ballots upon request of poll workers. ORC 3505.11.

The secretary of state has not issued a directive or advisory controlling the handling of ballot shortages. However, counsel to the secretary of state testified before Congress that the secretary's office worked with counties in printing ballots on demand and instructed the counties on using photocopied ballots as a last resort. Election Contingency Plans CQ, Congressional Testimony, May 14, 2008.

What if touchscreens break down?

Touchscreen polling places have paper ballots

An Ohio Secretary of State directive requires that touchscreen polling places be stocked with a number of optical scan ballots equivalent to 25% of the precinct turnout in the last like election (see here). In Ohio's March, 2008, primary, voters in Lucas County cast paper ballots when touchscreen machines were not working properly.

Post-Election Processes

State certification deadline

About 30 days after election

The Secretary of State will meet to canvass the abstract results received from the county board of election no later than 10 days after the abstracts have been received (counties must submit abstracts within 21 days of the election). ORC 3505.35. The Secretary will announce the results upon completion of the canvass. This announcement is not technically considered an official certification of the results, but has the effect that certification has in other states (it starts the clock ticking on the deadlines for filing recounts and election contests). 

Actual certification of the results will not occur until the time for filing of recounts has passed (or any filed recount has been completed). ORC 3505.38. The deadline for filing recounts is 5 days after the Secretary announces the results.

Election contest deadline

Contests not permitted under state law

Ohio law explicitly denies state courts jurisdiction over federal election contests. ORC 3515.08.

If presidential contests were allowed, the contestant would have to file a petition in the appropriate court within 15 days after the results of the election are "announced by the proper authority." ORC 3515.09. However, if there is a recount, the contestant would have to file the petition within 10 days after the results of the recount are announced. The Supreme Court of Ohio has read this statute to say that the clock on the deadline begins running only after the election returns are certified, not when they are announced. Maschari v. Tone, 103 Ohio St.3d 411, 2004-Ohio-5342, ¶14 (2004).

Local count deadline

Between 15 and 21 days after the election

The canvass begins between 11 and 15 days following an election. ORC 3505.32. The board must complete the canvass by the 21st day after the election. Upon completion, the board will submit a certified abstract to the secretary of state. ORC 3505.33. However, the canvass will not be considered final until 81 days after the election (the Secretary of State may set this deadline earlier if it is necessary to comply with federal law). ORC 3505.32. Results may not be amended after the deadline.

Audit type

Other

Ohio conducts manual audits, which are then compared against a machine re-tabluation of the vote (see here). Touchscreens are recounted by manually reviewing paper trails and comparing that count against the original total that is printed at the end of the paper trail.

Participating county boards of elections randomly select whole precincts that equal 7% of the vote (see here). Currently, participation in the audit program is voluntary. Discrepancies can trigger a second audit of greater scope and, if the discrepancies persist after this audit, all ballots for the audited race must be manually recounted. If the totals obtained in the manual audit of touchscreens differ from the original totals, the manually obtained totals will become the official count once they are double-checked.

Audit scope

7% of votes

Participating county boards of elections randomly select whole precincts that equal 7% of the vote (see here).  Currently, participation in the audit program is voluntary. Discrepancies can trigger a second audit of greater scope and, if the discrepancies persist after this audit, all ballots for the audited race must be manually recounted. If the totals obtained in the manual audit of touchscreens differ from the original totals, the manually obtained totals will become the official count once they are double-checked.

Candidate-requested recounts

Upon request

Any losing candidate may apply for a recount of the votes in any precinct. ORC 3515.01. For statewide offices, the application must be filed within five days after the Secretary of State “declares the results of the election.” ORC 3515.02. The statute does not state whether this means when the results are announced, or when they are certified.

For offices or issues within a county, the application must be filed within five days after the Board declares the results. ORC 3515.02. For offices or issues within a multicounty district, the application must be filed within five days after the Board of the most populous county within the district declares the results of the election.

Administrative Recounts

Not explicitly authorized

No black-letter law was found authorizing administrative recounts.

Automatic Recounts

Triggered at 0.25%

An automatic recount will occur in a statewide election when the margin of victory is less than or equal to 0.25%. ORC 3515.011. In municipal or county-wide elections, an automatic recount will occur when the margin of victory is less than or equal to 0.5%

Defintion of a vote

Concrete standard

Ohio law requires that ballots should be counted despite technical errors unless it is impossible to determine the voter’s choice. ORC 3505.28. Another law makes this determination easier by providing specific examples: Circling the name of the candidate, the oval next to the candidate's name, or placing an "x," check mark, or other "recognizable" mark in the oval will count as a vote. ORC 3506.21.

Election Contest Scenario #1: Unverified Ballots

Re-vote

R.C. 3505.18 requires voters to write their names and addresses in the pollbook; this signature is then compared to the one on file. This procedure is mandatory, and failure to follow it constitutes an “election irregularity” that gives a court cause to throw out the affected votes or the entire election. Crane v. Perry Cty. Bd. of Election, 839 N.E.2d 14, ¶ 27 (Ohio, 2005). Nevertheless, the court will not actually invalidate the election or change its result unless the contestant demonstrates, “by clear and convincing evidence, how many votes were actually affected by the irregularity or how the irregularity might have affected the outcome of the election….” Id. ¶ 29.

In Crane, contestant lost because he could only establish 204 affected votes, but the margin of victory was 277 votes. Id. ¶¶ , 2. See also In re Election Contest of Dec. 14, 1999 Special Election, 744 N.E.2d 745 (Ohio, 2001). The contestant in Crane sought only invalidation of the election. Id. ¶ 28. Thus, in order to win it would have only been necessary for him to show that the complained irregularities called the result of the election into doubt. However, if he had wanted to be installed into office, he would have faced a much higher burden: The burden of showing that, but for the irregularities, he would have won the election.

In In re Election of Nov. 6, 1990 for Office of Atty. Gen. of Ohio, 569 N.E.2d 447 (Ohio, 1991), contestant complained, among other things, that some precincts in Summit County counted a total of 16 more ballots than the number of voters who signed in at the polls. Id. at 463. There are two possible causes of this discrepancy: first, that some voters cast ballots without first signing in; second, that some, after signing in, cast multiple ballots. In any case the Supreme Court did not attempt to correct the count or fashion any remedy because, it said, “contestor does not relate this irregularity in a way that would affect the outcome of the Attorney General’s race. Accordingly, we find that he has not produced clear and convincing evidence to show how votes were affected.” Id. While the court did not elaborate any further, in this statement it seems to be indicating that, because the contestant failed to prove the content of the illegal ballots, he cannot prove by clear and convincing evidence that they changed the outcome of the election.  

Election Contest Scenario #2: Provisional Ballots with Technical Mistakes

Errors will disqualify ballots where they violate specific legal requirements

Ohio law states the following information must be included in a provisional voter’s affirmation “in order for the provisional ballot to be eligible to be counted”: The voter’s name, signature, and a statement that the voter is registered and eligible in the jurisdiction. §3505.183(B)(4). Another statutory provision indicates that voters may provide current and former address information and driver’s license number information, but the law does not state that that information is required for the vote to count. §3505.182.

In addition, there is a special concern that applies only to voters who fail to present proper ID at the polls. These voters must cast a provisional ballot and must provide their social security numbers either at the time of voting or within ten days of the election (but note they can also provide proper ID within ten days of the election). §3505.183. The code does not explicitly state whether provision of an incorrect social security number would invalidate the ballot, but this is a concern. It is a concern because the law states that provisional ballots shall not be counted where the board of elections is unable to determine whether the voter was registered an eligible. Id. The code does not give any guidance regarding whether provision of an incorrect social security number would make it impossible to determine registration and eligibility per se, but it is likely that at least some election officials would interpret the law this way.

What Court Would Hear a Presidential Contest?

No Presidential election contest permitted

Ohio law explicitly denies state courts jurisdiction over federal election contests. O.R.C. § 3515.08(A). 

Who Performs Presidential recounts?

Bipartisan

County boards of election conduct recounts. 3501.06. The Board of Elections consists of four partisan officials - not more than half of whom may be from a single party - appointed by the Secretary of State. 3501.06. The Secretary of State is an elected, partisan office. Const. Art. III, s 1. Persons requesting recounts and their appointed observers may observe the recount process. 3515.03; 3515.04.