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Free & Fair

New Dispute over Ohio's Provisional Voting Procedures

A late-breaking controversy has emerged over provisional voting in Ohio. It concerns the official form used to indicate whether or not the provisional voter has shown the poll worker a valid identification.

The form contains a space for the provisional voter to write down the last four digits of the voter’s Social Security Number (SSN), if that is the form of ID the voter wishes to use. Alternatively, the voter may write down his or her Ohio driver’s license number (DLN), and the form provides a separate space for that.

Beyond those two methods of identification, the form also contains several boxes the provisional voter may select depending upon which other type of identification the voter presents. There is a box for “military identification card”; one for current utility bill, bank statement, or other similarly acceptable document; and another for a government-issued photo ID. Finally, there is also a box for a voter who does not possess any of the permissible types of ID and who fills out a separate form swearing so.

The controversy concerns what happens, when it comes time to determine the eligibility of a provisional ballot, if none of these boxes are checked—and the SSN or DLN spaces are also blank—and the provisional voter has failed to submit a valid type of ID by November 16. The form itself warns the voter, albeit in somewhat smaller print: “If you do not check one of the following boxes . . . the board of elections will conclude that you did NOT show ID to your [poll worker] and you must show ID at the board of elections during the 10 days after the election for your vote to be eligible to be counted.” The form also declares sideways, at its left-hand edge, in larger bold type: “MANDATORY INFORMATION REQUIRED FOR YOUR BALLOT TO COUNT.”

In addition to the language of the form itself, the Secretary of State has given the local boards of election a directive on what to do when evaluating the eligibility of provisional ballots. This directive was released just this past Friday, November 2—a reflection of the fact that the rules for counting provisional ballots in Ohio have been the subject of ongoing federal-court litigation for months (indeed years), and that one aspect of this litigation was resolved only last Wednesday, October 31, in a ruling by the U.S. Court of Appeals for the Sixth Circuit.

This directive states that the local board must reject a provisional ballot if “the voter did not provide identification on the provisional ballot affirmation” and did not give to the board by November 16 the missing ID. The directive does not speak explicitly in terms of the boxes (and SSN and DLN spaces) on the form being blank, but the reasonable implication  is that the way the board determines that “the voter did not provide identification on the provisional ballot affirmation” is by seeing that the boxes (and spaces) are blank. Therefore, if the boxes (and spaces) are blank, and the voter did not give the board a valid ID by November 16, then the directive instructs the board to reject the ballot.

A group of plaintiffs who have sued Ohio over its provisional voting rules are now complaining that the form and the directive put the responsibility on the voter, rather than the poll worker, of recording which type of ID the voter uses, by checking the corresponding box (or filling out either the SSN or DLN space). The plaintiffs contemplate a situation in which the voter actually presented to the poll worker a valid type of ID, but did not check any of the boxes (or complete either the SSN or DLN space), and neither did the poll worker. In this situation, the plaintiffs seem to imagine, the voter will not think he or she needs to get ID to the board within 10 days (even though the form warns that failure to check a box has this consequence), and thus the ballot will end up being rejected although the voter actually did present a valid ID. The plaintiffs want instead the poll worker to bear the obligation in this situation to make sure that the box is checked (or one of the two spaces is completed) and, if it is not, for the ballot to count even though the board has no evidence that the voter actually presented to the poll worker any ID.

The plaintiffs point to a state statute, Ohio R.C. § 3505.181(B)(6), which could be read as requiring the poll workers to make sure that one of the boxes is checked (or either the SSN or DLN space is filled out). But plaintiffs have brought their new complaint to federal, not state, court. Insofar as the plaintiffs are arguing that Ohio’s Secretary of State is violating Ohio law, the Sixth Circuit previously has made clear that the proper forum for that issue is state, not federal, court.

Conceivably, there might be two possible bases in federal law for plaintiffs’ new claim. One would rest directly on the Fourteenth Amendment of the U.S. Constitution. The other would rely on a consent decree that the plaintiffs secured with the previous Secretary of State, Jennifer Brunner, on April 19, 2010.

I do not see how a claim resting directly on the Fourteenth Amendment could succeed in light of the Sixth Circuit’s ruling on October 11. There, the appeals court explained that it was not an unconstitutional burden to require provisional voters to print and sign their name on the same form now in dispute. Given this, there seems no chance that the Sixth Circuit would consider it an unconstitutional burden to require provisional voters, rather than the poll workers, to check the relevant ID box (or fill out either the SSN or DLN space) on the same form. Indeed, in its October 11 opinion, the Sixth Circuit included the requirement to “provide identification” as one of the form’s three “rather simple instructions,” although the court observed that the ID requirement was not under challenge at the time.

Explaining how the plaintiffs might be relying on the consent decree is more complicated. But first it is worth pausing to consider the timing of the plaintiffs’ new complaint. The form, with its boxes for voter to check (or spaces to fill out), was adopted on January 4 of this year. It was used in Ohio’s presidential primary in March, as well as in a special election in August. If the plaintiffs believed that the form violated the 2010 consent decree, they should have raised this issue long before last Thursday, November 1, when they went to court about it. As the U.S. Supreme Court has explained, as has the Sixth Circuit, last-minute federal court filings to alter the rules for casting and counting ballots are disfavored, most especially when they could have been brought much earlier.

To be sure, the Secretary of State’s new directive did not exist until Friday (in large part, as already indicated, because of all the antecedent litigation). Even so, Thursday’s filing shows that the plaintiffs’ new complaint concerns the form at least as much as the directive and thus could have been raised in January or at least over the summer, when the plaintiffs presented other issues concerning the enforcement of the consent decree. Moreover, the language of Friday’s new directive does not significantly alter the basic fact that it is the form itself that puts the onus on the voter, rather than the poll worker, to make sure that an ID box is checked (or SSN or DLN space is filled out)—and, if it is not, then the ballot will be rejected unless valid ID is supplied within 10 days after Election Day.

Assuming that it would be appropriate at this late date for the federal court to reach the merits of plaintiffs’ claim that the form (coupled with the directive) violates the consent decree, several subsidiary issues emerge.

First, the consent decree makes plain (in multiple places) that the scope of its substantive provisions is limited to those provisional voters who use “the last four digits of [their] social security number” rather than a different type of valid ID. Section 5.a.vi of the decree, for example, states that a ballot must count if, among other things, “[t]he provisional ballot affirmation includes the last four digits of that voter’s social security number, which is not found to be invalid.” Section 5.b. generally provides that a local board of elections “may not reject a provisional ballot cast by a voter, who uses only the last four digits of his or her social security number as identification, for any of the following reasons” (italics added). One of those following reasons—the one relied upon by the plaintiffs in their new complaint—is subsection 5.b.vii: “The poll worker did not complete or properly complete and/or sign the provisional ballot application witness line and/or the provisional ballot affirmation form, except for reasons permitted by the governing statutes.”

The immediate difficulty is this: how is one supposed to know that a provisional voter used the last four digits of his or her SSN, and therefore is within the scope of the consent decree’s protections—rather than another acceptable type of ID, and thus is outside the scope of the decree’s protections—if both the SSN and DLN spaces on the form are blank, and all the boxes corresponding to the other alternative types of ID are all unchecked? To count ballots when no type of ID has been indicated on the form would seem to go well beyond the decree’s limited applicability. The key point here is that the provisional ballot form seemingly must show that the voter used the last four digits of his or her SSN to get the benefit of the decree, and yet the circumstance we are contemplating is that the form does not show this.

Second, the specific subsection upon which plaintiffs rely, 5.b.vii, does not explicitly refer to a poll worker’s obligation to complete the ID portion of the ballot affirmation form. Rather, as quoted above, this subsection’s language is more general in nature, referring to the poll worker’s failure to “complete or properly complete and/or sign the provisional ballot application witness line and/or the provisional ballot affirmation form.” The form itself contains a separate section for the poll worker to fill out. It is below the section that the voter completes, including the ID section. The poll worker’s section contains the italicized heading: “Failure by the [poll worker] to complete this section will not affect whether or not this provisional ballot is counted.” Thus, it is possible to construe subsection 5.b.vii of the consent decree as applying specifically to this section of the form—and not applying to the voter’s failure to mark down the presentation to the poll worker of a valid ID.

Third, the Sixth Circuit made clear in its October 11 opinion that the consent decree risks violating the Equal Protection principle of Bush v. Gore insofar as it protects provisional voters who use the last four digits of their SSN rather than a different type of valid ID. Consequently, it would seem necessary to expand the scope of the consent decree—beyond its originally intended limited applicability—to cover all provisional voters regardless of the type of ID presented, in order to avoid the Bush v. Gore problem. But as the district court itself recognized when it refused to extend the scope of the consent decree with respect to the issue of missing names or signatures, the court has no basis for extending the decree if doing so is not necessary to address a potential constitutional violation. Asssuming (for reasons stated above) it is not unconstitutional to require the provisional voters themselves to mark on the form the type of ID they supplied, then to extend the consent decree beyond its original scope seems unwarranted. It would cure the Bush v. Gore problem just as much to retract (or interpret) the scope of the decree, so that it provides no relief to any provisional voter who fails to mark down the type of ID supplied. Retracting the decree in this way is what the district court did with respect to the issue of missing names and signatures, and it would seem that the same approach is called for with respect to this new issue of a missing indication on the form of ID that allegedly was in fact presented to the poll worker.

For all three of these reasons, it seems problematic for the federal court to grant the relief the plaintiffs now request, even if it were appropriate for the court to reach the merits of plaintiffs’ new claim. Ordinarily, I am hesitant to evaluate the merits of a pending issue before a court until I’ve had the opportunity to read and reflect upon the full briefing of the issue, from all sides to the litigation. In the present situation, there are more briefs to come this week from both plaintiffs and the Secretary of State (and perhaps others), according to a schedule set by the court. But because there has been considerable media attention to this issue over the weekend, I thought it might be helpful (for members of the public trying to understand what is going on) to offer this preliminary analysis of the issue—even though it is necessarily tentative in light of the still-unfolding nature of litigation.

Two more thoughts: First, the briefing schedule set by the federal district court means that the resolution of this new issue will not occur until after ballots are cast on Election Day. In my judgment, that is regrettable. A basic principle of voting-related litigation, widely recognized among election law scholars, is that it is better to resolve disputes over the ballot casting-and-counting process, if at all possible, before rather than after Election Day. The nature of this new issue is such that, even though it arose for the first time on Thursday and Friday of last week, it would have been preferable to settle it on Monday, November 5, rather than extending it into week. It is true that the effect of any ruling will take place at the time the ballots are counted, rather than cast, but still it would be preferable to settle the counting rules before the ballots are cast. (The plaintiffs may not be asking for a change in the form itself, or in the conduct of voters and poll workers on Election Day, but they are asking for a change in the counting rules as a consequence of Election Day conduct by voters and poll workers. The counting implications of casting events should be determined, if feasible, before the casting as well as the counting.)

Second, for those trying to assess the potential significance of this particular issue, especially in the context of the presidential election, it is worth mentioning two numbers. In 2008, Ohio rejected 1990 provisional ballots for flawed or missing ID. Also that year, Ohio rejected 2201 provisional ballots for a flaw in printing or signing the provisional ballot envelopes. These numbers give some kind of idea about the potential size of problem this year if provisional ballots are rejected because there is no indication on the form that the voter presented a valid type of ID.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


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