Federal Judge: OH Must Count Provisional Ballots Cast at Wrong Place Through No Fault of Voters

Otherwise valid provisional ballots cast at the wrong precincts in Ohio, through no fault of the voters, must be counted, according to a ruling issued by a federal judge on Monday.

The decision, which otherwise seems like common sense, comes in the wake of tens of thousands of provisional ballots going uncounted after the 2008 Presidential election thanks to a provision in Ohio law which discards such ballots, even in the case where a poll worker has improperly instructed a voter to cast his or her ballot in the wrong place.

The ruling is a defeat for Ohio’s Republican Sec. of State who, after working towards inclusiveness and voting rights earlier in his tenure, seems to have taken a hard right turn in many of his decisions of late, as the Presidential Election nears.

As we noted last month, an investigative report by the Cincinnati Enquirer’s Barry M. Horstman found that some 40,000 provisional ballots cast in the 2008 general election were never tallied, even though many of them were cast in the right polling place, but at the wrong “precinct” table, as precincts have been combined into the same building over the years in the Buckeye State.

A voter might line up to vote at the wrong table/precinct, for example, only to be told they weren’t found on that precinct’s voter rolls and, rather than be directed by the poll worker to the correct “precinct”, instructed to cast a provisional ballot at that table instead. That vote, before Monday’s ruling, under existing Ohio law, would go uncounted. Many of those provisional ballots were cast in predominantly Democratic-leaning counties.

The Enquirer warned in their report last month that “tens of thousands of ballots are likely to be disqualified” once again in the key swing-state, during the 2012 Presidential election unless the provision was changed, as recommended by state election officials after the 2008 election.

On Monday, U.S. District Judge Algenon L. Marbley, citing Bush v. Gore of all things, ruled against Ohio Sec. of State Jon Husted (R), whose spokesman responded: “We respectfully disagree with the judge’s ruling and will likely appeal.”

Marbley found that Husted’s belief that such ballots should not be counted “belies a fundamentally misguided view that the state need not protect the right to vote of individuals who, for any number of reasons, are required to cast a provisional ballot”…

Judith Browne Dianis, Director of the Advancement Project, who, with the Service Employees International Union and others brought the case against the disenfranchising Ohio state law, said that the judge’s ruling “reflects the common sense that voters should not be disenfranchised because of an election official’s error.”

As we have discussed on a number of occasions, The BRAD BLOG has given Husted the early benefit of the doubt since he came into office in 2010. He initially earned our goodwill last year by almost single-handedly stopping his fellow Republicans from implementing a polling place Photo ID restriction in the state. In a powerful statement, as GOP lawmakers in the Buckeye State were attempting to add the provision to an election reform bill, he declared that he “would rather have no bill than one with a rigid photo identification provision that does little to protect against fraud and excludes legally registered voters’ ballots from counting.”

He again bucked his own party by calling for the repeal of the bill that eventually did pass, after a popular uprising against its restrictions on Early Voting hours succeeded in suspending the law in favor of a citizens’ ballot referendum.

But our goodwill has faded for Husted, in light of recent directives he’s issued resulting in limited Early Voting hours — even after the appeal of the original controversial law — and then when recently threatened to fire two Democratic Board of Election Commissioners in Montgomery County for daring to cast a vote which Husted felt was in opposition to his directive.

Last week, during our exclusive interview with the previous Sec. of State, Jennifer Brunner (D), she told us she felt the Republican attempt to limit Early Voting hours in Ohio was “clearly aimed” at limiting Democratic and African-American access to the polls.

Popular weekday evening and weekend Early Voting, which has been drastically curtailed by Husted’s recent directives, was instrumental to both Democratic turnout in 2008, as well as to an easing of lines at the precincts on Election Day which, under Brunner’s disastrous predecessor, Sec. of State J. Kenneth Blackwell (R) in 2004, forced voters to wait anywhere from 2 to 12 hours before casting their vote in some of the state’s most Democratic-leaning precincts.

In another challenge to Ohio’s new restrictions on Early Voting — in this case, to a ruling by Husted that only active duty military members may participate in Early Voting during the final three days before the November election — a decision is expected soon in the Obama Campaign and Democratic Party’s lawsuit arguing that all Ohio voters ought to be able to cast a ballot during that period, if they wish. As we detailed earlier this month, after an inaccurate report at the late Republican con-artist Andrew Breitbart’s website claiming the Obama administration was suing to restrict military voting in the state, the campaign of presumptive GOP nominee Mitt Romney falsely charged that the President was attempting to “undermine” the “voting rights of our military”.