Thursday, October 11, 2012
In its opinion today in Northeast Ohio Coalition for the Homeless v. Husted, consolidated on appeal with SEUI v. Husted, the Sixth Circuit considered yet another problem with Ohio's voting regime and as in Obama for America v. Husted decided last week regarding early voting ruled mostly against the state.
The 35 page per curium opinion considers Ohio’s requirements that provisional ballots be cast in the correct precinct and with completed voter affirmation, making no exception for wrong-precinct and deficient-affirmation ballots caused by poll-worker error.
The Sixth Circuit affirmed the district judge's injunction in SEIU v. Husted regarding wrong precinct voting as a denial of equal protection. After extension discussion regarding factual nuances of the district court's order, the Sixth Circuit upheld the wrong precinct voting injunction. However, in a very brief analysis, the panel reversed the injunction against deficient affirmation ballots, finding that the "spotty record" did not support the judge's presumption of poll-worker error.
Yet the panel's own ruling created some equal protection issues:
we note some additional issues our ruling creates that must be resolved. While we have set aside the portion of the preliminary injunction addressing deficient-affirmation provisional ballots, the consent decree continues to mandate that some deficient-affirmation provisional ballots will be counted. This discrepancy appears to create a Bush v. Gore problem. Similarly, the consent decree standing on its own also raises Bush v. Gore issues by virtue of treating some provisional ballots differently than others. This latter concern is not purely academic, as the consent decree will be the only agreement governing these issues for Ohio’s 2013 primary elections.
Thus, the panel remanded the Northeast Ohio Coalition for the Homeless case for the district judge to "expeditiously address" the equal protection issue created by the consent decree’s provision for the counting of deficient-affirmation ballots and the motion to modify the consent decree in light of the equal protection concerns raised by the consent decree’s differential treatment of provisional ballots.