Ohio election law litigation

... and on and on it just seems to go

An article on Cincinnati.com this morning reports "a program intended to simplify Ohio voter registration changes produced headaches for the Hamilton County Board of Elections, which this week found itself needing to very quickly review and update records for more than 2,000 people., but that 'unfortunate rush' in processing those changes will produce advantages on Election Day by significantly reducing the number of voters who cast provisional ballots according to a spokesman for Ohio Secretary of State Jon Husted yesterday."

But another wild card in declaring a winner on Election Night could be just those thousands provisional ballots, given to voters when their eligibility is in question, often because of address changes or other discrepancies, a Cleveland Plain Dealer article yesterday morning said. Election boards hold the ballots 10 days to determine eligibility, and Ohio's said to have one of the highest provisional ballot rates in the country.

"If Ohio is held up, and Ohio is essential to know who won, then the presidency is going to get held up," the article quoted Edward Foley, director of Election Law at Ohio State University Moritz College of Law as saying.

"More than 200,000 provisional ballots were cast in Ohio in 2008. About 40,000 were determined to be ineligible in that election with Barack Obama defeating John McCain and carrying the state by about 262,000 votes. The margins were closer, though, in 2000 and 2004. George W. Bush carried Ohio over Al Gore in the 2000 election by about 165,000 votes. In the 2004 election, Bush margin over John Kerry was less than 119,000.
“Southern Ohio U.S. District Court Judge Algenon Marbley last week expanded his initial August ruling that Ohio must count provisional votes that are cast in the wrong location due to poll worker error, which can happen in polling sites that handle more than one precinct. Secretary of State Jon Husted is appealing that ruling, too, to the U.S. Sixth Circuit Court of Appeals." (Appeal document)

Judge Marbly's action came after last week's 6th. Circuit ruling that upheld his original holding from back on August 27th. were the 6th. Circuit "sustained part of the preliminary injunction in appeal, affirming the wrong-precinct remedy and reversing the deficient affirmation remedy. The district court's judgment in No. 12-3916 is affirmed and the matter is remanded so that the district court may expeditiously address (1) the equal protection issue created by the consent decree’s provision for the counting of deficient-affirmation ballots by SSN-4 voters, and (2) a motion to modify the consent decree in light of the equal protection concerns raised by the consent decree’s differential treatment of provisional ballots."