Vote Counting in County Judicial Election

A three-judge panel of the Sixth Circuit ruled yesterday in Hunter v. Hamilton County Board of Elections that Tracie Hunter, a candidate for Hamilton County (Ohio) Juvenile Court Judge, had a strong likelihood of success on the merits of her equal protection claim that the County Board of Elections treated some provisional ballots more favorably than others. 

The case arose at the intersection of Ohio's provisional ballot law, Hamilton County's practice of combining different precincts in the same location, and the Board's examination of ballots at different locations.  Under Ohio law, a voter's provisional ballot will be counted if the "individual named on an accompanying affirmation is . . . eligible to cast a ballot in the precinct or for the election in which the individual cast the provisional ballot."  Some voters in Hamilton County submitted provisional ballots at the right location, but the wrong precinct.  The Secretary of State mandated that the Board "may not reject a provisional ballot cast by a voter, who uses only the last four digits of his or her social security number as identification" if, because of poll-worker error, the ballot was submitted in the right polling location but the wrong precinct.

Hunter claimed that the Board applied different standards to two groups of provisional ballots that were submitted at the right location but the wrong precinct.  The Board flatly rejected 849 ballots from one location, including 269 submitted at the right location but the wrong precinct, not considering evidence of poll-worker error.  But the Board accepted 27 provisional ballots from a different location, ruling that poll-worker error must have caused the voter to submit the ballot to the wrong precinct, because there was only one poll-worker on site at this location.  The court:

In particular, the Board explicitly refused to separate from the 849 wrong-precinct ballots those ballots cast at the right polling location but wrong precinct.  The evidence of poll-worker error with respect to those 269 ballots--that the ballots were cast at the correct multiple-precinct polling location--is substantially similar to the location evidence considered by the Board with respect to the ballots cast at [the other location].

Op. at 25.  According to the court, this disparate treatment "raises serious equal protection concerns."  Op. at 27.

But more.  The new Secretary of State argued that the district court created more equal protection problems when it ordered a review of the 849 ballots, but not the 27 other ballots.  The court rejected this argument, distinguishing Bush v. Gore:

We conclude that the Board's review has met the requirements of Bush v. Gore.  Secretary Husted urges that the district court failed to satisfy the requirements of Bush v. Gore when it ordered a "standardless investigation" which was not applied to the first group of 27 ballots, and then was inconsistently implemented with respect to the remaining ballots.  But . . . the Board's review of the wrong-precinct provisional ballots was guided by objective criteria provided by [then-]Secretary Brunner to effectuate the district court's order.  Moreover, the guidance rejected by the Supreme Court in Bush is different from that used here.  The "intent of the voter" standard invalidated in Bush was being implemented differently by different counties with respect to the same presidential election.  Because of a lack of "specific standards to ensure its equal application," "each of the counties used varying standards to determine what was a legal vote."  Here, however, the district court's order applied to only one jurisdictional entity--Hamilton County--and one race--Hamilton County Juvenile Court Judge.  This is not a situation in which a court is announcing a standard to be interpreted differently by multiple jurisdictions, resulting in the unequal counting of votes across counties.  Instead, the district court is requiring the Hamilton County Board of Elections to review all deficient provisional ballots within the county under the same standard, and not just those cast at a particular location.  Therefore, the district court's order, unlike the statewide order in Bush, does not give rise to inter-jurisdictional differences in how the order is implemented.

Op. at 30-31.  The panel upheld that part of the district court's order that the Board investigate the 269 ballots and "[left] to the district court in the first instance, applying the uniformity requirements of Bush v. Gore, to direct the Board how to proceed" regarding these and other contested ballots.  Op. at 41.

SDS