Election Law @ Moritz

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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Topic-by-Topic Coverage (Provisional Ballots)

Recent News & Analysis

Below are the most recent News & Analysis posts on Provisional Ballots. See All News & Analysis on Provisional Ballots

12/15/08
Motion Filed to Enjoin Ohio Supreme Court Order

The plaintiffs in NEOCH filed a motion on Friday (12/12) in federal court to enjoin the Ohio Supreme Court's Order in Skaggs to the extent that the Supreme Court's Order "requires the Franklin County Board of Elections to reject provisional ballots that have a printed name but no signature."  The motion further asks that Secretary of State Jennifer Brunner be ordered to rescind Directive 2008-118, which was issued pursuant to the Supreme Court's Order in Skaggs.

12/7/08
OH-15 race resolved, Kilroy wins and no recount triggered

Ohio's 15th district congressional race has finally been decided.  Mary Jo Kilroy defeated Steve Stivers by 2,311 votes.  An automatic recount would have been triggered had the margin been around 1,600 votes.  Resolution of this race was help up by a challenge by Stivers supporters to about 1,000 provisional ballots.  The Ohio Supreme Court decided Friday that these votes were invalid.  Ohio law requires that a determination be made as to the validity of all of the provisional ballots before any are counted.  That is why the 26,000 other provisional ballots could not be counted until the suit was resolved.  Kilroy faced an even longer delay two years ago in her race against incumbent Deborah Pryce who will retire at the end of her term.  See the Dispatch coverage here.

12/5/08
Summary of today's Ohio Supreme Court decision on provisional ballots

Provisional ballots are likely to be counted by tomorrow evening and the outcome of the 15th congressional district race between Steve Stivers and Mary Jo Kilroy may be known by then. Theirs is the last congressional race in the country to have no initial winner declared. An automatic recount is likely to be triggered. See the Dispatch coverage here.  See opinion, MPC case page.

Six of the seven justices participated in the decision and all agreed that the majority of the ballots should not be counted while Justice Lanzinger was joined by Justice Pfeifer in her opinion that the 30 provisional ballots with name but no signature could have been counted. The Court treated each of the three groups of ballots separately in its opinion. The three groups of ballots and the reasons they were deemed ineligible for counting are:

1) ballots with name but no signature; ineligible for counting because, despite consistent instructions, the secretary’s interpretation of the law was unreasonable;

2) ballots with signature but no printed name; ineligible for counting because the secretary’s instructions to only one county post-election failed to ensure uniformity in counting provisional ballots and;

3) ballots with name and/or signature in the wrong place on the ballot envelope; ineligible for counting because, despite consistent instructions, the secretary’s interpretation of the law was unreasonable.

Follow the link to continue reading the summary of the Court’s opinion… [Read More]

12/5/08
Ohio Supreme Court to Franklin County - do not count disputed provisional ballots

The Ohio Supreme Court decided that Secretary of State Jennifer Brunner acted unreasonably in instructing the counties to count provisional ballots without both name and signature and those with name and/or signature in the wrong place on the form.  See opinion, MPC case page.

12/5/08
More on the Ohio Election Summit

Steve Hoffman, Akron Beacon Journal writer and panelist in Tuesday's summit, has this editorial.  He specifically mentions the difference in provisional voting rates between Ohio and Missouri and the perception that Ohio's high rate makes it more prone to litigation in the weeks preceding and following election day.  Ohio had a provisional voting rate this year of approximately 3.2% while Missouri's rate was 0.2%.  Part of the difference could be accounted for by the fact that Missouri doesn't allow provisional ballots to be used on election day to change the voter's address.  Address changes in Missouri have to be made prior to election day.  In Ohio, provisional ballots have been used since the early 90's--long before HAVA--to allow voters to change their address on election day, but it is unclear what proportion of today's provisional voters fall into this category.  Many panelists and commenters pressed for meaningful data to be gathered and reported by Ohio officials so that all interested parties can base their election policy debate on sound facts instead of emotions and anecdotes.  While the use of provisional ballots to change an address is seen by some as an accomodation to voters, these provisional ballots can get caught up in unforeseen disputes such as whether the formal requirements for completing the ballot envelope have been satisfied.  Voters can get tripped up by choosing to take advantage of a voting option that they may not realize will decrease the likelihood of their ballot being counted.  EL@M has been monitoring progress in the lawsuit over ballot envelope formalities in Ohio's Franklin County.  See the Skaggs case page here.  The Ohio Supreme Court has not yet issued a decision.

Recent Commentary

Below are the most recent Commentaries on Provisional Ballots . See All Commentaries on Provisional Ballots

11/5/09
Uncounted Ballots: A Measure of Vulnerability

Guess what? Ohio ranks especially vulnerable.

12/9/08
If the Minnesota Recount Involved a Presidential Race…

Happy Safe Harbor Day. No, it’s not to celebrate measures to secure seaports against terrorist threats, although that’s certainly a worthwhile goal.

Instead, it’s the day that Congress has set for states to resolve all controversies concerning the counting of votes for President, if the states wish their resolution to be binding when Congress meets to declare officially the election’s winner.

Eight years ago, it was the day that the U.S. Supreme Court ended the Florida recount in Bush v. Gore. Under the Electoral Count Act of 1887, which Congress passed in the wake of the disputed Hayes-Tilden election of 1876, Safe Harbor Day is always the fifth Tuesday after Election Day, and six days before the Electoral College meets in each state.

11/26/08
New Bush v. Gore Precedent

A unanimous 3-judge panel of the U.S. Court of Appeals for the Sixth Circuit has released an important opinion in a case I’ve been watching closely for several years. This new precedent could have major implications going forward.  Arguably, it is now the most significant appellate court reliance on Bush v. Gore.

11/4/08
Four Sub-Categories of Uncounted Ballots

As we head into Tuesday evening, at Election Law @ Moritz we will be looking for publicly available numbers on these four sub-categories of ballots that will not be included in the initial returns but that potentially will (or at least may) be counted down the road:

1. Provisional Ballots
2. Overseas and "Late Arriving" Absentee Ballots
3. Problematic Absentee Ballots
4. “Residual” Optical Scan Ballots

 

11/1/08
3 Things I'm Watching For

As I reflect over this last weekend before November 4, these are the three issues at the forefront of my mind:

1. Will Demand Exceed Supply?

2. Will the Number of Uncounted Ballots Significantly Exceed the Difference in Counted Ballots?

3. Will a Lack of "Paper Trail" Undermine the Outcome in Any Critical State?

Recent News Stories

Below are the most recent News Stories on Provisional Ballots. See All News Stories on Provisional Ballots

4/22/09
Ohio's secretary of state wants simpler voter identification and provisional ballot laws

Ohio's elections chief wants to simplify the state's voter identification and provisional ballot laws, and increase the number of early voting sites. Ohio Secretary of State Jennifer Brunner issued formal recommendations for elections law changes to the Legislature on Wednesday, after two conferences and months of meetings.

4/22/09
Brunner offers election reforms

Ohioans would get more places to cast early absentee ballots but would have fewer days to vote under a plan unveiled today by Secretary of State Jennifer Brunner.

4/18/09
Changes at voting polls rile up critics

Like a similar Senate version, the House bill would ban two forms of voter ID at the polls now used mainly by older voters and require paid initiative-petition circulators to register with the state. It also would require people whose address changed in the month before an election to cast provisional ballots, prohibit anyone from interacting with voters in a floating 100-foot zone outside polling places and make it more difficult for third-party groups to register new voters.

4/16/09
Overhaul of Florida Voting Rules Is Proposed

Republican lawmakers, who control both houses of the Legislature, have proposed sweeping changes to the state’s election laws, including new procedures on registering voters, and requiring voters to use a provisional ballot if they move shortly before an election.

4/12/09
Ohio must fix voting problems

This past week, the Brennan Center released a study of Ohio's election system following two post-election summits coordinated by Secretary of State Jennifer Brunner to examine myriad nagging problems that continue to plague the state elections system.

Current Litigation

Below are the Active Cases on Provisional Ballots . See All Current and Archived Cases on Provisional Ballots