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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, November 3
A New Absentee Voting Directive in Ohio
On the eve of the election, Ohio Secretary of State Jennifer Brunner has issued a new directive, requiring counties to give would-be absentee voters notice if there's a problem that would prevent their absentee ballot from being counted. Directive 2008-109 may be found here. Last-minute directives can sometimes cause more problems than they solve but, in this case, some guidance was necessary ... though it may not be sufficient.

The directive appears designed to deal with what might be called the "Colker Problem," after my friend and colleague Ruth Colker who describes here the difficulty she experienced in getting her absentee ballot counted. Briefly, Franklin County initially didn't count her absentee ballot, because registration records listed her as having a date of birth than the one on her absentee voter envelope -- specifically, listing her year of birth as 1958 instead of 1956. Had she not checked the county's website before the election, only to find that her ballot hadn't been counted, it might have been rejected without her even knowing. Eventually, Professor Colker was able to persuade Franklin County that their records were wrong and get her vote counted.

Directive 2008-109's stated purpose is "to provide a uniform process by which absentee voters may be given notice that additional information is required to effectuate their vote on an absentee voter's ballot." It directs counties to notify voters of any deficiencies, and give them an opportunity to correct errors. Notice must be given no later than six days after Election Day (November 10). Absentee voters will then have until the tenth day after the election (November 14) to correct any errors or omissions.

This directive helps with one of the problems revealed by Professor Colker's story -- namely, the due process problem that would arise from rejecting an absentee voter's ballot without giving them notice and the opportunity to explain or correct the asserted error. But there are at least two other problems that still exist.

The first is that it leaves open the possibility that absentee ballots could be rejected as "insufficient," and therefore rejected under Ohio law (ORC 3509.07), for overly technical reasons. Professor Colker's ballot was rejected because the birthdate submitted with her absentee ballot didn't match the one in registration records. This may be a plausible reading of the statute, but it's hardly clear that this is required. It's also not clear from this provision how other discrepancies should be treated, such as:

- A discrepancy between the spelling of the voter's name in registration records and the information on the absentee ballot application or envelope (e.g., a voter's last name is listed as "Worzelbacher" in registration records but the absentee voter application or envelope reads "Wuerzelbacher")

- A discrepancy between the address in registration records and the address on the absentee voter application or envelope (e.g., 320 W. Broad St. instead of 302 W. Broad Street).

- A discrepancy between the driver's license number or social security number in registration records and that on the absentee voter application or envelope (e.g., 3543 instead of 3534)

To reject absentee ballots based on such trivial discrepancies would arguably violate Ohio law. In its recent decision requiring the Secretary of State to honor absentee ballot applications with a box that voters neglected to check, the Ohio Supreme Court cautioned against "unduly technical intepretations that imede the public policy favoring free, competitive elections." State ex rel. Myles v. Brunner (Oct. 2, 2008). [Disclosure: I joined a brief supporting relators' position and opposing that taken by the Secretary of State.] Interpreting Ohio law to demand an "exact match" -- with respect to address, date of birth social security number, driver's license number, or address -- might be viewed as just such an overly technical interpretation. Nothing in the directive requires that absentee ballots be rejected for such reasons, but it's not prohibited either.

The other problem is that the ambiguity of the statute -- and the failure, as far as I can tell, of the Secretary of State to issue definitive guidance on what makes an absentee ballot "insufficient" -- gives rise to a potential equal protection problem. Different counties might apply different rules in determining which absentee ballots should count. Some might count those ballots, for example, despite the existence of a trivial difference in the name of the voter as listed in registration records versus that on the absentee voting envelope, while others might not. Some might check the voter's date of birth, as listed on the envelope, against registration records while others might not. You get the idea.

At this point, I can't say for sure what counties' practices are, which is why I describe this is merely a "potential" equal protection problem. It's also hard to say whether this is an Ohio-specific problem or one that extends to other states -- but if I had to bet, I'd say that other states' rules for verifying and counting absentee ballots probably have similar vagueness and ambiguity. In in a close, contested election, this type of dispute over absentee ballots could well wind up in litigation.

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Moritz College of Law The Ohio State University