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Edward B. Foley
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Ohio Provisional Ballots: New Consent Order

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November 14, 2006

Late today Judge Algenon Marbley of the federal district court here in Columbus entered an order agreed upon by the parties in NEOHC v. Blackwell. The order, a little over four pages in length, sets forth some basic procedures regarding the evaluation and counting of provisional ballots that were cast anywhere in Ohio last Tuesday.

Acknowledging that “some poll workers incorrectly required voters” to cast a provisional ballot even when they presented appropriate ID in accordance with the court’s previous consent order, including by failing to accept a driver’s license as a valid ID even when it did not contain the voter’s current address, the new order mandates that these provisional ballots “shall automatically be counted as regular ballots.” Otherwise, the new order reiterates that county boards of elections should follow the previous consent order’s “eight-factor” test for determining whether a provisional ballot qualifies to be counted.

The new order also provides for partisan observers to monitor the provisional ballot evaluation and counting process in accordance with Ohio’s statutes. Observers may review the list of provisional ballots rejected for inadequate identification. The order, by its terms, does not extend to observers this right of review when provisional ballots are rejected for other reasons. But at any meeting of a county elections board where the board will consider the recommendation to reject a provisional ballot, the observers may object to the recommendation.

One interesting, and potentially significant, feature of the new order is that it states: “The Board’s decision regarding whether a provisional ballot shall be counted shall be final except as otherwise provided by Ohio law.” This sentence presumably would permit a challenge to the rejection of a provisional ballot as a part of an election contest in state court, where the losing candidate attempts to overturn the outcome of an election on the ground that valid votes were excluded from the final count. Under Ohio law, as recently revised by the General Assembly a contest of this kind may be brought to challenge the result of an election for a state office, such as Auditor, but not for an election to federal office, such as U.S. Representative.

It is unclear, however, whether this sentence is meant to preclude any further challenge in federal court to the invalidation of a provisional ballot. The assertion that this invalidation shall be “final,” unless “Ohio law” provides otherwise, can be read as precluding a challenge to the invalidation based on federal law. If this reading is correct, then presumably the plaintiffs in this case would be blocked from returning to federal court to claim that the invalidation of some provisional ballots but not others violated the federal Equal Protection Clause. But the order does not expressly say that it bars any such claim, and even if it did it would seem unlikely that this order could preclude a claim filed by any individual, voter and/or candidate, who was not a party to this case.

In this respect, the terms of the consent order may not limit potential federal-court litigation that might be contemplated on behalf of the eventual losing candidates in the three major unsettled elections in the state: the second and fifteenth congressional districts, as well as the statewide Auditor race. But because the procedures for evaluating and counting provisional ballots, as set forth in this order, are binding upon the Secretary of State and all county boards of elections, they will be the procedures to be followed with respect to the provisional ballots applicable to all three of these races.

UPDATE (11/15, 8:02am): A Columbus Dispatch article describing this order indicates that the Franklin County Board of Election, whose provisional ballots are the focus of the Pryce-Kilroy battle for the 15th congressional district, may not complete its counting of these ballots by Tuesday, November 21, as originally intended. Under state law, the counting must be complete by the following Tuesday, November 28.