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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Monday, January 30
Provisional Ballots in Ohio
No, this isn't just a flashback to those days in early November 2004, when those of us here at Moritz were bleary-eyed from lack of sleep. There's actually some news on the subject, on two fronts. (Before you D's out there get too excited ... I hate to tell you this, but Kerry still lost.)

U.S. District Judge David Katz in Toledo has issued this memorandum opinion in White v. Blackwell. The case concerns whether voters who applied for, but claim not to have received or cast, absentee ballots have a right to cast provisional ballots. Relying on a directive from Secretary of State Ken Blackwell, the Lucas County Board of Elections has denied such voters provisional ballots. The case was originally brought on election day in November 2004, and Judge Katz issued a TRO against the Secretary and county board that same day. (More documents from the case are available here, and I discussed this case in a recent G.W. Law Review piece which may be found here.)

In its most recent order, the court rejects the argument that the case is moot, noting the uncontradicted evidence that the Secretary of State has promulgated -- and not retracted -- guidance that a provisional ballot should be denied to those who requested an absentee ballot. The court notes that Blackwell's office continued to provide the same guidance and form that prompted the original TRO, even after the November 2, 2004 election. In particular, the order cites an August 2005 special election for a congressional seat, in which the same forms were used. The court goes on to finds Blackwell's guidance to be in plain violation of HAVA when it comes to federal elections, a point that doesn't seem to be in serious dispute. It also finds Lucas County to be in violation of HAVA, despite their claim that "we were only following orders."

If the facts are indeed as stated in Judge Katz's opinion, it's hard to see what Blackwell's office could have been thinking. There's really no serious question about the underlying legal issue, namely that voters have a right to cast a provisional ballot if they certify that they're eligible and registered in the jurisdiction (though, as the court's order rightly notes, whether those provisional ballots are actually counted is a separate question). So why didn't the Secretary of State's office correct its guidance to counties? It's a mystery to me. To top it all off, the inexplicable actions of Blackwell's office have left the State of Ohio on the hook for attorney's fees which Judge Katz -- quite properly, in my view -- awards to plaintiffs.

In other Ohio provisional voting news ... the state's house and senate have reached agreement on a massive bill overhauling the state's election system. The bill is slated for a vote in both houses tomorrow, according to the Cleveland Plain-Dealer. Unfortunately, the bill as a whole will do more harm then good. Among its provisions are ones disallowing provisional ballots from being cast if they're cast in the "wrong precinct," and requiring voters to produce identification (although, thankfully, not state-issued photo ID) in order to have their votes counted. The bill also includes provisions providing that voters names be "marked" if mail is returned as undeliverable, and facing the prospect of non having their votes counted, as well as a provision allowing pollworkers to demand the production of papers from naturalized citizens whose eligibility is challenged. The latter provision, in particular, is a recipe for racial profiling at the polls. My testimony on a prior version of the bill, most all of which applies to the current version, is here, and the ID provision is specifically addressed here and here.

Even aside from the voting rights concerns associated with this bill, an almost certain consequence will be to increase the number of provisional ballots cast. That, in turn, will not only magnify the headaches that local election officials must deal with, but also increase the risk of post-election disputes and litigation.

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Moritz College of Law The Ohio State University