Even after election, court battles over Ohio provisional ballots continue

Residents of Skid Row vote in the US presidential elections in the polling place of Los Angeles Mission on November 6, 2012 in Los Angeles, California.  (Photo by Kevork Djansezian/Getty Images)

Residents of Skid Row vote in the US presidential elections in the polling place of Los Angeles Mission on November 6, 2012 in Los Angeles, California. (Photo by Kevork Djansezian/Getty Images)

The 2012 election may be over, but Ohio Secretary of State Jon Husted continues to face criticism, and opponents of his pre-election maneuvers continue to wind their way through the courts.

Earlier this year, Husted’s office revised form 12-B – the affirmation form used by those voting on provisional ballots in Ohio, moving the portion describing the type of identification used, from the part of the form filled out by poll workers, to above the signature line used by voters. That violated Ohio law, according to voting rights groups, who went to court just days before the November 6th election, seeking an injunction against Husted, after he issued an eleventh hour order that any ballots with improperly filled out ballot affirmations be tossed by elections supervisors.

This week, a federal judge sided with the voter groups. Judge Algenon Marbley blasted Husted and his counsel for, in effect, misleading the court by giving assurances that voters who were forced to use provisional ballots would be protected from disenfranchisement because the burden of filling out the ID portion of the ballot affirmation would fall on poll workers. Husted’s counsel gave those assurances to the court during his successful appeal of part of Marbley’s previous order, which stated that voters who were directed by a poll worker to the wrong wrong precinct table, even if they did so at the right polling place, or who voted at the wrong polling place, must have their votes counted. An appeals court stayed the so-called “wrong church/wrong pew” portion of Marbley’s ruling.

But several groups, including one representing homeless Ohioans, had previously obtained a Consent Decree, which was renewed for the 2012 election, permitting people who lacked a state-issued ID to vote using the last four digits of their Social Security number. And Judge Marbley blasted Husted’s counsel for violating that decree by changing the rules in the final hours before Election Day.

“First, having created the equal protection issue by issuing a directive that violates both state law and a voluntarily entered Consent Decree, the Secretary cannot benefit from his illegal act by using it to escape his obligations under the Consent Decree,” Judge Algenon Marbley wrote in his November 13 order. “Second, if the Secretary has drafted form 12-B in such a way that it both illegally shifts the burdens of recording identification information from election officials to voters and does not allow election workers to distinguish poll-worker error from voter failure to provide identification, that is the Secretary’s mistake. There were myriad options available to the Secretary to create a form which would have made such distinctions clear, but he chose not to pursue those options.”

Marbley’s order went on to state that “Counsel for the Secretary unambiguously assured this Court that the Secretary understood the recording of ‘identifying information’ to be a duty ‘imposed upon the poll worker’ and that the failure to do so would not ‘invalidate ballots.’ The Court relied on this statement to the Plaintiff’s detriment. Nine days after making that representation to the Court, the Secretary ordered that no provisional ballots be counted if the identification information was improperly recorded, without [e]ngaging in fact-finding to support the change.”

Lawyers for the Northeast Ohio Coalition for the Homeless, which represented voters forced to use provisional ballots in the November 6th election, along with two locals of the SEIU labor union and the Ohio Democratic Party, had requested an emergency injunction preventing Husted from being able to throw out ballots based on incorrectly filled out ballot affirmations. In granting the injunction, Marbley lashed out at Husted’s actions, saying “democracy dies in the dark.”

“The poor drafting of Form 12-B which, by design or by accident, purports to shift the poll worker’s statutory duty to record the form of identification to the provisional voter, did not provide occasion for the Plaintiffs to seek injunctive relief until the Secretary issue Directive 2012-54 at 7:00 pm on November 2,” the judge wrote, referring to Husted’s November 2nd order to throw out any ballots where the ID portion of the affirmation form were not properly filled out.

“Ohio voters reasonably expect that the Secretary of Ohio will abide by the General Assembly’s laws in administering a federal election. For an executive official of the state to [flout] state law in arbitrarily reassigning a poll worker’s statutory duty to a voter, with the result being disenfranchisement of the voter, is ‘fundamentally unfair and constitutionally impermissible,’” the judge wrote. “The voter acting in good faith cannot suffer disenfranchisement as a result of the Secretary’s drafting errors.”

Subodh Chandra, one of the lawyers representing the voting rights groups, praised Marbley’s ruling, calling it an attempt to “protect our constitutional rights against the kind of ‘bait-and-switch’ that Secretary Husted pulled here.” Chandra said Husted’s counsel “told the Court he would follow the law, the Court and my clients relied on it, and he then reversed course days later–literally after dark–on the Friday night before the election.”

“Husted’s every maneuver during election season–from trying to curtail early voting to this sneaky move–has meant voter disenfranchisement,” Chandra said. “Why is he afraid to count every legitimate vote without playing these games?”

Chandra and his clients’ relief at the judge’s ruling was short-lived, however.

On Friday, the Sixth Circuit Court of Appeals issued a stay of the ruling, calling Husted’s changes to the way provisional ballots are counted — or rejected — “more stylistic than substantive,” and interpreting Husted’s order to mean that “ballots will be rejected when the voter has not provided identification, either at the polling place or subsequently within ten days of the election.”

The appeals court chided the plaintiffs for waiting until five days before the election to issue their motion, noting that the change to the form happened months earlier.

“My clients are obviously very disappointed that the Sixth Circuit’s decision has effectively enabled Secretary of State Husted to pursue this latest disenfranchising move,” Chandra told theGrio. “Respectfully, the court’s opinion was not faithful to its own precedent. It ignored evidence in the record and it quashed the tradition of giving deference to the district court judge in interpreting his own order.”

“The bottom line is that as a result of this decision, legitimate voters will be disenfranchised. There’s just no doubt about this now.”

Voting rights groups say Husted’s directive resulted in confusion during the election period, where at various polling places, “sometimes voters were filling out the info, and sometimes poll workers were doing so.”

“Combined with the fact that Husted eliminated the requirement that the poll worker record what, if anything, the voter is supposed to come back with,” Chandra said, “when the ID portion [of the ballot affirmation form] is blank, there’s no way to know whether the voter was responsible, or the poll worker was responsible for the error. The court has said we should always assume the voter is responsible, but there will be times when that is not true.”

Husted through his spokesman said he was “pleased that the Court has once again ruled to uphold consistent standards and to maintain the integrity of Ohio’s elections process.”

“As the Court correctly noted, plaintiffs and the lower court inaccurately portrayed Directive 2012-54 as a dramatic departure from prior policy and that to change the rules by which votes are counted after they have already been cast would compromise the interest of Ohio and the public in fair and orderly election procedures,” Husted added. “Despite the efforts of those who sought to create controversy where none existed, we ran a smooth election in Ohio and did so according to the law and the Constitution.

“Today’s court ruling is vindication.”

But voter groups remain hopeful that they will ultimately succeed, and they question Husted’s intentions in what they see as serial attacks on voting rights.

“One really has to wonder why so many of Husted’s actions have the net result of disenfranchising the poorest of the poor,” Chandra said.

Follow Joy Reid on Twitter at @thereidreport.