Groups file emergency motion over last-minute move that could toss Ohio provisional ballots

Ohio early vote

MENTOR, OH - NOVEMBER 03: Charter buses idle at the curb, waiting to take people to vote early after they attend a campaign rally with U.S. President Barack Obama at Mentor High School November 3, 2012 in Mentor, Ohio. With just three days left until the presidential election, Obama and his opponent, former Massachusetts Gov. Mitt Romney are stumping from one 'swing state' to the next in a last-minute rush to persuade undecided voters. (Photo by Chip Somodevilla/Getty Images)

Voting rights advocates are asking a federal court to step in and stop what they call an eleventh hour move by the Ohio secretary of state that could disenfranchise thousands of Ohio voters. Lawyers representing plaintiffs in a case regarding how provisional ballots will be treated in Tuesday’s election filed an emergency motion challenging a directive to elections supervisors, issued by Ohio Secretary of State Jon Husted late Friday, after the court had closed.

Husted’s order requires poll workers to not count provisional ballots where voters make any errors in filling out their provisional ballot and affirmation, including the part of the form detailing what forms of identification they are presenting in order to vote. The problem: Ohio law states that filling out the ID portion of the form is the responsibility of poll workers, not voters. Ohio Revised Code Section 3505.181 (B)(6) states that “the appropriate local election official shall record the type of identification provided” by the voter.

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“The voter is just supposed to write their name on the ballot form and affirmation and sign it,” Subodh Chandra, an attorney representing the plaintiffs in a case over how provisional ballots will be treated if voters are directed by poll workers to the wrong precinct told theGrio. “The election worker is not only supposed to write down the form of ID, they’re supposed to certify that they have told the voter what to do to verify that their vote counted. They’re supposed to provide guidance and they’re supposed to verify it.”

Husted changed the voter affirmation form, moving the portion where the ID information is entered above the signature line, despite the fact that by Ohio statute, it is supposed to be below the voter’s signature, in the section of the form to be filled out by a poll worker.

“I thought, this doesn’t make any sense, why he’s trying to disqualify ballots based on mistakes on ballot affirmation” Chandra said.

Chandra is among the attorneys representing the plaintiffs in the case of Northeast Ohio Coalition for the Homeless  (NEOCH) et.al. vs Husted, which along with a related case, are the so-called “right church/wrong pew” and “wrong church/wrong pew” cases. Federal Judge Algenon Marbley ruled in those cases that a voter who is misdirected by a poll worker to the wrong table at a voting location with multiple precincts, or directed to the wrong polling place altogether, must have their provisional ballots counted. The appeals court upheld the first decision, but stayed the second decision, the “wrong church/wrong pew” rule, was stayed by the Sixth Circuit Court last week after Husted appealed.

Voting rights activists fully expected Husted to issue a directive regarding how provisional ballots would be treated in the wake of the ruling, so Chandra sent a letter to Husted’s counsel, asking that Husted be sure to clarify in his order that an errors on the form made by poll workers not be counted against the voter. Chandra said Husted never responded to the request, or to a follow up telephone call.

“We were getting increasingly suspicious about what the directive would say, so we filed the emergency motion” requesting clarification from the federal court. “And then they issued the directive after business hours, without giving us any notice.” Chandra said.

In arguments before the Circuit Court, Husted deflected any concerns about potential voter disenfranchisement by reasserting that it is indeed the poll worker’s responsibility to ensure that the form of ID presented was recorded, adding that voters should not be disenfranchised due to a poll worker’s “failure to write something down.” Having made that argument, Husted nonetheless is now ordering elections supervisors to throw out provisional ballots where the ID is improperly recorded.

“They told the court, ‘don’t worry, because the poll worker’s responsible for the ID portion,’ and the judge relied on it in his order,” Chandra said. “Why does this matter? Because the people most likely to fill this form out, are the people protected by the consent decree, meaning people who are able vote using the last four digits of their social security number — people who are poor. This could be the issue being litigated over, that decides the election.”

Chandra was referring to a 2010 court order which forced the state to let people without traditional forms of ID, or utility bills in their name, to vote provisionally using just their social security numbers. The consent decree covers the current election. It stems from a 2006 law Husted himself presided over when he was state House speaker in 2006; Ohio’s first voter ID law. Advocates for the homeless and low income communities had successfully argued in court that people of modest means were often unable to produce the kinds of ID that cost money to obtain (Ohio doesn’t offer free voter IDs). They won two separate court decrees, in 2006 when Republican Ken Blackwell was secretary of state, and in 2010 when the state’s elections chief was a Democrat, Jennifer Brunner.