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Information & Analysis

This Morning's Ohio Provisional Ballot Counting Motions


As anticipated, the plaintiffs in the SEIU and NEOCH cases late last night filed motions in federal district court seeking clarification of an order governing the counting of provisional ballots. In his post yesterday about this evolving issue, Ned Foley cautioned about the need to await full briefing by all sides before offering a more definitive analysis of the merits. Under the court’s briefing schedule, the State of Ohio will likely be responding by this Wednesday, November 7. While still awaiting the complete briefing by all sides, a brief synopsis of the plaintiffs’ claims may be in order.

At their core, this morning’s motions claim that a new directive issued last Friday evening by Ohio Secretary of State John Husted, Directive 2012-54, will result in the failure of Ohio election officials to count a class of provisional ballots that should be counted under the terms of a federal consent decree and the Fourteenth Amendment of the U.S. Constitution. The claim involves the official form that is to be filled out to accompany each provisional ballot. The plaintiffs claim that, contrary to Ohio statute, the form places on the voter, rather than the poll worker, the obligation to complete the portion of the form showing what type of identification the voter presented. Although the form has been in place since early this year, the plaintiffs claim that until Directive 2012-54 the form’s misplaced burden had no actual impact on the eligibility of the provisional ballot. But by its terms, Directive 2012-54 now requires county boards of election to reject provisional ballots for which the voter has not provided this information, even though state statute requires the poll worker to provide this information.

The motions allege that this change to the rules for processing provisional ballots departs from the terms of the NEOCH consent decree as well as from understandings reached as part of the ongoing litigation about the scope and validity of this decree. The motions also allege that the change to the processing of provisional ballots worked by the new directive violates the Equal Protection Clause of the Fourteenth Amendment because of the resulting differential treatment of provisional ballots cast by voters who supply the last four digits of their Social Security Number, compared to voters who provide some other form of identification. The motions seek an order that provisional ballots “may not be disqualified because the ballot form information regarding the identification proffered by the voter is incomplete, unless the board of elections first has determined that the voter failed to provide poll workers with the last four digits of his or her Social Security number or proffer other identification acceptable under Ohio law, and that the voter declined to complete a Form 10-T affirmation.”



Edward B. Foley

Gerrymandering as Viewpoint Discrimination: A "Functional Equivalence" Test

Edward B. Foley

A First Amendment test for identifying when a map is functionally equivalent to a facially discriminatory statute.

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In the News

Daniel P. Tokaji

This is why US election ballots routinely go missing

Professor Dan Tokaji was quoted in USA Today about the prevalence of missing election ballots.


"Most of the time, it just goes unreported because it doesn't affect the result," Tokaji said. 

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Info & Analysis

Supreme Court Finds Partisan Gerrymandering Claims to be Non-Justiciable Political Questions

In a 5-4 decision, the U.S. Supreme Court issued an opinion on Thursday determining that claims of partisan gerrymandering are political questions beyond the reach of the federal courts. The opinion resolved disputes originating in North Carolina and Maryland, in the cases of Rucho v. Common Cause and Lamone v. Benisek.

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