A last-minute order by Ohio Secretary of State Jon Husted that includes a disputed form to be filled out by provisional voters in the state led to a court filing within hours and commentary that the move was “The Biggest Legal Story of the Weekend.”
The portion of the form in question was not new on Friday. It was designed by Husted’s office earlier, and states that a voter is to check a box noting which type of identification he or she used in casting a provisional ballot — despite state law directing poll workers to make such notations. Husted’s use of the form again on Friday led Ari Berman at The Nation to write that “Eleventh-Hour GOP Voter Suppression Could Swing Ohio.”
Although there are conflicting signals from the secretary of state’s office, the directive appears to have told county boards to toss out the ballots in question if the voter did not check off the box on the form. This was enough to raise red flags from Democrats who are watching Husted, a Republican, closely after having faced off in court with him already several times this year.
More than anything else, the quick back-and-forth legal moves and shouting-on-paper (or computer screen) outside responses are some of the clearest signs that 2000’s Florida recount changed presidential elections — and even down-ballot races — for good.
So, in this instance, how did we get here?
As part of an ongoing court order, called a consent decree, in a case brought on behalf of the Northeast Ohio Coalition for the Homeless (NEOCH) and following recent decisions relating to the state’s provisional ballots, Husted on Friday issued a directive to county boards of elections on “Determining the Validity of Provisional Ballots and the Modified NEOCH Consent Decree.” In it, an earlier designed form that the lawyers for the plaintiffs in the NEOCH case say gets the law wrong is again utilized.
Ohio election law states that the “the appropriate local election official shall record the type of identification provided” in this instance, but the form issued by Husted — and reissued on Friday — has a section labeled “MANDATORY INFORMATION REQUIRED FOR YOUR BALLOT TO COUNT” and within that section it states to the voter: “If you do not check one of the following boxes affirming the type of ID you showed to the precinct election official … the board of elections will conclude that you did NOT show ID to your precinct election official and you must show ID at the board of elections during the 10 days after the election for your vote to be eligible to be counted.”
It would appear that Husted’s office has even indirectly acknowledged that the form is incorrect and that poll workers bear the responsibility here, with his lawyer stating in court in October that “the obligation to write down the identifying information is imposed upon the poll worker, not upon the voter,” according to a portion of the hearing’s transcript included in a recent court filing by the NEOCH lawyers.
Some answers should come on Monday, when Husted needs to provide a response about the issue to Judge Algenon Marbley, the Clinton-appointed judge overseeing the consent decree implementation. Judging from earlier litigation in Ohio this fall, an appeal to the Sixth Circuit Court of Appeals would appear to be almost certain. (The votes from provisional ballots in Ohio can’t even begin to be counted until Nov. 17, so the timing is not as immediate as it at first would seem — although boards can begin determining whether the provisional ballots themselves are valid as soon as the day after Election Day.)
In an area of the election process that only becomes relevant if the initial Election Day count is very close — Ohio’s automatic recount provision only is triggered if the election is within 0.25 percent — even subsets of subsets of ballots could become The Deciding Factor.
In this context, any perceived change in the election process, particularly one made on the Friday afternoon before the election, is framed by partisans, such as Think Progress’ Judd Legum, as eleventh-hour trickery.
As frustrating as this coverage can be for the casual observer, the problem with tracking election challenges is that, almost by its definition, everything can be crucial.
So, although provisional ballots were just more than 3.5 percent of Ohio ballots cast in 2008, and less than 1/5 of them were rejected, those rejected provisional ballots — 40,000 of them in 2008 — could be decisive should the state be closer than polling indicates.
Moreover, in this election, this numbers of provisional ballots cast are expected to be higher because Husted’s office sent all voters absentee ballot applications and those voters who requested an absentee ballot but instead decide to vote in person on Election Day will be given a provisional ballot.
With Ohio seen as close to a must-win state as there is, a fight over any votes is a necessary one for both sides of the electoral divide. This weekend’s squabble, moreover, is just a slight foreshadowing of the legal battles to come if Ohio or another state ends Election Day in a decisive electoral position and with a “too close to call” election.
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