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Ohio Fights on Early Voting, Provisional Ballots

J.D. Pooley/Getty Images
Students from Bowling Green State University took a golf cart to the Wood County Courthouse in Bowling Green, Ohio, on the first day of early voting in the battleground state.

The dispute over Ohio’s early voting rules began last summer when Gov. John Kasich (R) signed a measure passed by the Republican-controlled legislature that ended early voting on the Friday before Election Day. After legislative maneuvering and an attempt to repeal that law by referendum, the state was left with conflicting statutes. One ends the early voting period on Friday, while another allows  members of the military to continue voting until Election Day.

Husted stepped in to mitigate the confusion. He issued a directive to the state’s 88 counties that interpreted state law as setting a deadline of 6 p.m. Friday for nonmilitary voters but allowing county election boards to decide whether to remain open over the weekend before Election Day to accept in-person ballots from military and overseas voters.

The Obama campaign sued the state, arguing that it is unconstitutional to treat military and nonmilitary voters differently. A federal trial court agreed and in August stopped the changes in Ohio’s early voting window from taking effect. The Sixth Circuit last week concurred, paving the way for Ohio’s appeal that the Supreme Court lift the prohibition on changing the rules until the state can present its case.

In the provisional ballot case, the SEIU complained that the Ohio Supreme Court “adopted the most strict possible interpretation” of a statute “requiring the rejection of all wrong-precinct provisional ballots without exception, even where the County Board of Election knows that poll worker error led to the voter being provided with the wrong ballot.” 

Ohioans cast 200,000 provisional ballots in the 2008 elections, and 40,000  were tossed out, according to the union’s complaint. The state increasingly uses polling locations that serve voters from more than one precinct. 

A federal trial court judge ordered Ohio officials to count ballots cast in the wrong precinct unless specific criteria are met. The state asked the Sixth Circuit to review  that decision, and the appellate court heard oral arguments last week. A decision is expected shortly.

Hasen said that in the decade since Bush v. Gore “scholars have been puzzling” over a passage in the high court’s ruling that is relevant to both Ohio cases.

“Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s right to vote over that of another,” the court’s majority wrote in its rationale for ending the Florida recount.

“Both of these cases raise the question of when you can treat similarly situated voters differently. In the early-voting case, the question is the distinction between military and nonmilitary voters. In the provisional ballot case, it’s voters who did nothing wrong who happen to encounter an incompetent poll worker and voters who did not.”

Either case would provide an opportunity for the Supreme Court to further explain its thinking in Bush v. Gore, Hasen said.

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