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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.

Opinion and Analysis

Blackwell Files Appellate Brief in Provisional Ballot Case

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October 21, 2004

In his brief submitted on Thursday to the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, Secretary of State Ken Blackwell makes two main points in his effort to overturn a Toledo-based federal judge's order to count ballots cast in the wrong precinct within a voter's county. First, he argues that the new Help America Vote Act (HAVA), adopted by Congress in the wake of the 2000 election, does not authorize individual voters to go to court to enforce the law's requirements. Second, even if he is wrong on this point, Blackwell contends that HAVA does not specifically require states to let voters cast ballots in the wrong precinct.

Blackwell's first argument is a rather technical point relating to the rules of procedure in federal courts. According to previous decisions of the U.S. Supreme Court, no one is entitled to a remedy in federal court unless Congress clearly indicates its intent that there be one. HAVA does not specifically provide for such a remedy. Therefore, Blackwell contends that individual voters may not sue to enforce its provisions, but only the U.S. Department of Justice on behalf of an entire state's citizenry. (The U.S. DOJ itself has expressed its agreement with Blackwell's position on this point.)

Blackwell's second point, by contrast, is specific to substance of the so-called "wrong precinct" issue. Even if individual voters are entitled to sue to enforce its provisions, this argument is that its provisions do not require the casting of ballots at incorrect precincts. Blackwell bases this argument in part on the wording of HAVA itself, but even more on what Senators said about the new law when they were in the process of enacting it. The operative word in the new law is "jurisdiction," and Blackwell contends that in the context of voting that word means precinct rather than county, as the Democrats contend and the Toledo judge ruled. As evidence of what Congress meant when adopting HAVA, Blackwell points particularly to the comments of Senator Bond of Missouri, who specifically rejected the idea that HAVA requires states to permit voters to cast ballots at the wrong precinct. (More detailed analysis of congressional deliberations on HAVA, including Bond's comments. This analysis concludes that Blackwell's is the better understanding of HAVA on this point.)

Blackwell's brief is supported by a second brief filed in the Sixth Circuit on the Thursday. That brief was filed by a group of individual voters who have intervened in the case on Blackwell's side and are represented by Columbus-based attorney William Todd of the law firm Squires, Sanders & Dempsey. Previously, Todd has represented the Ohio Chamber of Commerce and related groups in litigation concerning a nationally prominent campaign advertisement broadcast during the 2000 race for a hotly contested seat on the Ohio Supreme Court. (That ad, entitled "Justice for Sale," accused the incumbent Alice Resnick of switching her vote in a case in response to special pleading from a campaign contributor.) Todd's brief echoes Blackwell's but stresses the distinction between the casting and counting of ballots, arguing that HAVA does not require provisional ballots submitted in the wrong precinct to be counted even if it does require that voters be permitted to cast a futile ballot there.

The Democrats will file their response to these two briefs by 10:00 am on Saturday, as required by the appeals court's expedited schedule.