August 28, 2012
Ohio Federal District Judge Enjoins Portions of State Provisional Voting Scheme
A federal district judge has enjoined specific provisions of Ohio’s election code that disqualify provisional ballots cast in the wrong precinct or cast with deficiencies in the ballot envelope form, when the ballot’s deficiency is the result of an error by the poll worker. In the 61 page opinion in the consolidated case, SEIU v. Husted, Judge Algenon Marbley first describes the "turbulent saga of Ohio’s provisional voting regime." The bulk of the opinion is a carefully reasoned application of equal protection principles to the various provisions as part of the likelihood of success on the merits prong for granting a preliminary injunction.
Marbley's opinion considers four equal protection challenges: the Wrong-Precinct Ballot Prohibition; Ballot Envelope Deficiencies; Disparate Impact of Poll-Worker Error by County; and Unequal Treatment of Provisional Voters. The most extensive analysis focuses on the wrong precinct issue, especially given the part that poll workers play in the process resulting in errors.
The Judge does cite Bush v. Gore several times, including quoting the statement that "[h]aving once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush, 531 U.S. at 104-05. As expected, the Sixth Circuit case of Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011) (“Hunter I”) is also prominent, not only for its adoption of Bush v. Gore language but because many of the same issues are involved. The opinion is sure to be quickly appealed to the Sixth Circuit, even as a complaint challenging Ohio's early voting regime on the basis of equal protection is also being litigated.
[image: 1850 map of Ohio via]
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