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Free & Fair

“Right Church, Wrong Pew” Ballots Must Count: a Cause for Celebration

A unanimous panel of the Sixth Circuit has essentially ruled that the federal Constitution prevents a state from “toss[ing] out” (to use the panel’s own phrase) ballots that are cast in the correct polling location when the defect under state law is that a poll worker caused the voter to cast a “wrong precinct” ballot at the correct location. Although the panel was careful to couch its decision in the language of “preliminary injunction” law, which required the court to find only that a constitutional violation was “likely” on these facts, the panel’s reasoning leaves little doubt that it would reach the same conclusion were the case in the posture that called for a permanent, rather than preliminary, injunction.

Moreover, the panel based its decision on both Equal Protection and Due Process grounds. There had been much discussion in the litigation of this case about whether Equal Protection properly applies, as Ohio law across-the-board invalidates all wrong-precinct ballots (and thus does not differentiate among them). As the panel opinion explains, however, the Supreme Court already had applied Equal Protection analysis to an across-the-board requirement that voters present a specific form of photo identification in order to cast a countable ballot—and, I might add, long ago the Supreme Court ruled invalid under Equal Protection an across-the-board state law that made payment of a poll tax a prerequisite to voting. Thus, the panel’s opinion should serve as a clarifying precedent that the same Equal Protection analysis should apply to any state rule that disqualifies some ballots from being counted. (This is not to say that an Equal Protection claim will win in all such instances, only that the disqualification of ballots always must be justified under Equal Protection principles.)

The panel opinion is especially noteworthy for speaking powerfully on behalf of protecting “the fundamental right to vote” (page 27) in the specific context of correct-location/wrong-precinct issue—or what many in the field of election administration call the “right church, wrong pew” problem. The opinion includes a photocopy of a precinct guide to illustrate “how easily poll workers can make mistakes under the pressures of election day” (pages 19-20). The panel then pointedly observes that to disqualify ballots in these circumstances “effectively requires voters to have a greater knowledge of their precinct . . . than poll workers”—making it unreasonable to “permanently reject their ballots without an opportunity to cure the situation” (page 21). After carefully considering all the justifications the State offered for invalidating these ballots, the panel explained why they are not strong enough to warrant “the summary rejection” of them “where the voter’s only mistake was relying on the poll-worker’s precinct guidance” (pages 23, 27).

Specifically discussing the Due Process claim applicable to this situation, the panel squarely rejected the state’s contention that there can be no Due Process violation predicated on poll-worker negligence. Instead, the panel accepted the plaintiffs’ point—correct in my view—that, even assuming that intentional state conduct is necessary to sustain a Due Process claim—the requisite intent exists in the state’s intentional decision to disqualify the ballots. Here’s what the panel said on this important point: “we find sufficient indicia of purposeful conduct in the State’s intent to enforce its strict disqualification rules without exception, despite the systemic poll-worker error identified in this litigation and others.” Indeed, observing that the Hunter case arising from the 2010 election “shed light on this problem last year,” the panel added “the State [still] persisted in its position” (page 25). Accepting that a Due Process violation exists only when a state’s voting rules are “fundamentally unfair” (page 24), the panel effectively condemned the disqualification of correct-location/wrong-precinct ballots as flunking this elementary standard.

Thus, I concur with Rick Hasen’s assessment of the panel’s decision as a “major victory for voters’ rights.” We may indeed look back on this decision as, in Rick’s words, the “most important” one “of this election cycle,” once it is all over. As of now, this ruling certainly can claim this preeminent status, given its powerful vindication of the basic right to vote. Moreover, it is necessary to note (this being an election case), all three judges on the panel were Republican appointees. Therefore, it is impossible to accuse this panel of harboring a partisan bias against the defense of Ohio’s draconian provisional voting laws by the state’s Republican Attorney General, Mike DeWine. The decision, in other words, is unimpeachably fair.

There are other elements of the decision that deserve mention.

First, the panel left undecided the issue of ballots cast in the wrong polling location. The panel interpreted the district court’s decree as not extending to that issue and, in a footnote, left it to further consideration in the district court on remand. If I were the plaintiffs’ attorney, I would hesitate to press too hard on this issue, given the tenor of the panel’s questioning at oral argument. These three judges likely would see the constitutional calculus very differently in the context of voters showing up at the wrong polling location. (The panel did, however, carefully note that its ruling extended to ballots cast at a county election board’s office, since under state law that location qualifies as a correct polling place.)

Second, the panel rejected the plaintiffs’ constitutional challenge to a different Ohio rule regarding the counting of provisional ballots. That other rule disqualifies ballots when voters have not properly written or signed their names on their provisional ballot envelopes. The panel premised its ruling on the fact that, in contrast to the “right church, wrong pew” situation, voters could protect themselves from disenfranchisement by the simple exercise of writing and signing their names. Even so, the panel was careful to leave open the possibility that a better developed factual record might show the disqualification of ballots in this situation to be unjustified; the plaintiffs simply had failed to meet their evidentiary burden on this issue, and thus the district court’s preliminary injunction could not be sustained on the existing record. Yet I am sure that the plaintiffs’ attorneys are capable of taking a hint and recognizing, at least with respect to this panel, that they face an uphill battle if they wish to attempt to build a record that would make a convincing case on this point.

Third, the panel also considered the relevance of a consent decree that protected from poll worker error voters who used the last four digits of their Social Security Number as their form of voter identification. The panel pronounced that “the consent decree likely violates the equal protection principle recognized in Bush v. Gore” insofar as it mandates the counting of ballots when voters used this permissible form of ID but not, despite being subjected to the same kind of poll worker error, when they used a different—yet equally permissible—form of ID (like a driver’s license). This important Bush v. Gore point applies to two groups of ballots not covered by the panel’s affirmance of the preliminary injunction with regard to the “right church, wrong pew” ballots: (1) ballots cast in the wrong location as a result of poll worker error, and (2) ballots with envelopes having a name or signature problem as a consequence of poll worker error. The panel left it to the litigants and the district court, on remand, to consider which way to solve this Bush v. Gore problem: either extending the scope of the consent decree to cover voters who use different (but equally valid) forms of ID, or curtailing the decree so that the state can disqualify ballots in these two types of situation regardless of the type of ID the voter used. It will be interesting to see how this issue unfolds as the case proceeds on remand.

In the meantime, today is an occasion to celebrate the most important feature of the panel’s decision: the federal Constitution requires the counting of “right church, wrong pew” ballots caused by poll worker error. This result is a vindication of the basic principle that the federal Constitution protects voters from fundamentally unfair disenfranchisement—and all federal judges, regardless of which president appointed them, stand ready to enforce this bedrock principle.

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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