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Free & Fair

Two More Thoughts About Ohio's Provisional Ballot Case


I arrived at work this morning with a couple of new thoughts about this interesting Ohio provisional ballot case. (I know, gotta stop thinking about it.  My questions from last night are still rattling around in the brain.) 

First, although I don’t recall seeing this issue raised in any of the briefs, I’m now wondering whether not counting the 27 ballots cast at the Board’s headquarters would violate the Help America Vote Act (HAVA). Here’s the situation as I understand it: everyone seems to agree that these particular voters are absolutely blameless; they did everything right in presenting themselves to the Board and are entirely eligible voters, and yet their ballots should not be counted (according to the Ohio Supreme Court) solely because Board workers gave these voters the wrong ballots for their addresses. Is it consistent with HAVA for a state to reject provisional ballots cast in this context?

To be sure, HAVA explicitly says that an “individual’s provisional ballot shall be counted as a vote in that election in accordance with State law” and this statutory language has appropriately been understood to mean that state law governs the eligibility requirements that an individual must meet in order to be a valid voter. Even further, this language is appropriately interpreted to mean that a state may set up its own procedural rules regarding the casting of provisional ballots, and if an individual fails to follow those rules—say, by failing to sign a provisional ballot envelope when required to do so—the state law can reject the provisional ballot as invalid.

But the whole concept of provisional vote (also called “fail-safe voting” in the U.S. Code) is that if the voter does everything right and nothing wrong according to state law, then the provisional ballot will count. That’s why the statutory language of HAVA is that if “the individual is eligible under State law to vote, the individual’s ballot shall be counted as a vote in that election in accordance with State law.” (Emphasis added.) HAVA does not contemplate the possibility that a state will give a voter a provisional ballot that is incapable of being counted under state law, even if the voter follows all the rules and procedures expected of that voter with respect to casting a ballot in the particular election.

Thus, it would seem inconsistent with the spirit (if not the letter) of HAVA for a state election official to dangle a tantalizing ballot in front of a voter, saying in effect “here’s a ballot that you can cast and will be counted if you are a valid voter and you fill it out properly” yet all the while state law makes it impossible for that very ballot to count even if the voter does exactly what the official says. In that situation, the ballot would be an entirely illusory (even fake) provisional ballot, not a real one. Yet HAVA, precisely in order to protect voters from government errors in the electoral process, requires that voters be given real provisional ballots that have a genuine opportunity of being counted as long as the voter is eligible to cast a ballot in that election and does everything properly in an effort to cast a ballot that will count.

In other words, despite what the Ohio Supreme Court has said, can it really be true under the relevant law operative in this situation that the Board’s workers can hand valid voters ballots that have absolutely no chance of being entitled to be counted, even though the voters themselves did everything right with respect to casting those ballots?

My second new thought concerns the same basic underlying facts about these 27 ballots cast at the Board’s headquarters, but relates to an issue of federal constitutional law rather than HAVA. Ohio has a recount law that automatically mandates recounting ballots when an election is close enough. Indeed, this particular election falls within the scope of this automatic recount, with the apparent margin of victory being 23 votes.

I very much doubt that an automatic recount is required by federal constitutional law. But once a state has decided to hold a recount—presumably in the interest of achieving accuracy and thus correcting errors with respect to the counting of ballots in the particular election—can the state say that it is entirely and categorically unconcerned with a particular type of governmental error committed in the process of casting and counting votes in this election? To be sure, there are different types of electoral errors. A recount may be designed primarily to check the accuracy of the vote-tabulating technology: for example, did the optical scan machines fail to count some darkened ovals that it should have? The fact that the government worker at the Board of Elections headquarters handed a voter the wrong ballot for the voter’s address is a different type of error than a mistake by an optical scan machine. But why would state law say it has absolutely no interest in correcting the latter type of error that improperly disenfranchises a voter when it is willing to take the time and expense of attempting to correct the first type of error? Even under the lowest level of scrutiny in Fourteenth Amendment jurisprudence, this decision by the government must be rationally related to a legitimate public purpose, and it is hard for me to see (at least as of this writing) exactly what the government’s legitimate interest in this context would be.

The government error that causes the voter to be handed the wrong ballot for the voter’s address, when the voter properly goes to the Board’s headquarters to cast a ballot, does not relate in any way (at least as far I can see) to the detection of voter fraud or prevention of invalid ballots from tainting the outcome of an election. Rather, it seems very equivalent to a government worker handing a voter a defective ballot that because of a rip or a wrinkle is incapable of being read properly by an optical scan machine. An error-correction process set up by the government to catch and fix this latter type of mistake would presumably be interested in catching and fixing the first type as well. Yet that is not what the Ohio Supreme Court has said—which is what about this case that remains the most perplexing to me.

All of the above point in the direction of reaching a conclusion that the group of 27 ballots cast at the Board’s headquarters must be counted by virtue of federal law, either HAVA or the Fourteenth Amendment, even if Ohio law requires that they not be counted. But of course even reaching that conclusion (assuming for the moment that it is correct) hardly begins to solve the main issues in this case, which concern not these 27 ballots already counted but instead all the rest (149 or so) that have never been counted. What to think about those still remains very much unclear, at least in my own mind at this moment.

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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