Ohio requires provisional ballots to be cast in the correct precinct and with a completed voter affirmation. Some Ohio polling places serve voters from several precincts, but the law does not make an exception wrong-precinct and deficient-affirmation ballots caused by poll-worker error.
According to the Sixth Circuit Court of Appeals, the state can't do that.
In constitutional challenges to Ohio's disqualification rules for nonconforming provisional ballots, the Sixth Circuit upheld a district court ruling that Ohio can't simply cast off the nonconforming votes.
In 2006, the Northeast Ohio Coalition for the Homeless and the Service Employees International Union Local 1199 (collectively NEOCH plaintiffs), sued Ohio's Secretary of State challenging numerous aspects of Ohio's new voter-identification laws.
After lengthy negotiations, the NEOCH plaintiffs settled their claims with then-Secretary of State Jennifer Brunner by entering into a consent decree, which provided that the state would not reject provisional ballots that, due to poll-worker error, were cast in the wrong precinct (but correct polling place), or with nonconforming or incomplete ballot affirmations.
Ohio didn't object to the consent decree's remedy until the Ohio Supreme Court issued a 2011 decision holding that Ohio's election laws offered no protections for wrong-precinct provisional ballots caused by poll-worker error.
After that decision, the state defendants returned to the district court seeking to vacate the consent decree, citing a conflict between state law and the consent decree's remedies. They also argued that the consent decree was void ab initio because the Secretary of State lacked the unilateral authority to abrogate state law in the absence of a federal constitutional violation.
In July, the district court denied the state defendants' motion.
This week, the Sixth Circuit Court of Appeals partially affirmed the district court's decision, concluding that the Ohio election board must count provisional ballots cast in the wrong precinct but at the right polling place, as long as the error was the poll worker's fault, reports The Wall Street Journal.
This is the second Sixth Circuit ruling against the state in a week. Last Friday, the Sixth Circuit Court of Appeals ruled Ohioans may cast early in-person absentee ballots during the final three days before the Nov. 6 election, reports Cincinatti.com.
- Northeast Ohio Coalition For Homeless v. Jon Husted (Sixth Circuit Court of Appeals)
- Will SCOTUS Hear Ohio Early Voting Case Before November? (FindLaw's Sixth Circuit Blog)
- Constitution Party of Kansas Loses Political Party Appeal (FindLaw's Tenth Circuit Blog)