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Ohio Loses Appeal, Can’t Reject Voters in Wrong Precincts

Ohio was barred from disqualifying provisional ballots cast in the wrong precinct, an appeals court said, upholding an earlier ruling.

The U.S. Court of Appeals in Cincinnati issued the ruling yesterday, the second loss in two weeks for the state in election-related lawsuits.

A lower-court federal judge in August ruled that provisional ballots, used to record votes when eligibility is an issue, can’t be thrown out if they’re filed in the wrong precinct as a result of poll-worker error. Opponents of a 2006 law saying they must be discarded argued that the law would unfairly cause the rejection of thousands of votes in the November election.

The lawsuit is one of at least 15 pending nationwide over election law limits on issues such as early voting, registration and identification in the run-up to the Nov. 6 vote. Yesterday, South Carolina became the fourth state to be blocked from requiring voters to show photo identification before casting a ballot.

A special panel of three federal judges in Washington ruled that given the time left before the election, requiring photo ID at polling stations puts a burden on minority voters that violates the Voting Rights Act of 1965. “Proper and smooth functioning” of a key protection in the South Carolina law can only be assured in elections after this year, the judges said.

Too Much Risk

“Even assuming the best intentions and extraordinary efforts by all involved, achieving that goal is too much to reasonably demand or expect in a four week-period -- and there is too much of a risk to African-American voters for us to roll the dice in such a fashion,” U.S. Circuit Judge Brett Kavanaugh said in the ruling.

The court said there was nothing inherently discriminatory in the law that would bar enforcement in future elections.

South Carolina Attorney General Alan Wilson called the ruling “a major victory for South Carolina and its election process.”

“It affirms our voter ID law is valid and constitutional under the Voting Rights Act,” he said in an e-mailed statement. “The fact remains, voter ID laws do not discriminate or disenfranchise. They ensure integrity at the ballot box.”

On Oct. 5, Ohio was barred by a different panel of the appeals court in Cincinnati from enforcement a law that ended early-voting days for the general populace on Nov. 2, while allowing members of the military and those residents living abroad to cast ballots until Nov. 5. The state appealed that decision to the U.S. Supreme Court.

Early voting in the state of 11.5 million people began on Oct. 2, according to Ohio Secretary of State Jon Husted’s website.

Vermont Sued

Vermont and its chief election official were sued yesterday by the U.S. over the state’s alleged failure to send more than 20 percent of the absentee ballots requested by Vermont’s military and overseas voters. The complaint filed by the U.S. Justice Department in federal court in Vermont seeks an order to ensure military voters can cast their ballots in time to have their votes counted, the department said in an e-mailed statement.

The lawsuit was filed under the Uniformed and Overseas Citizens Absentee Voting Act, which requires states to allow uniformed service voters and their families as well as overseas citizens to register to vote and to vote absentee for all elections for federal office, according to the statement.

Vermont Secretary of State James C. Condos, who is named as a defendant, didn’t return a phone call seeking comment on the lawsuit yesterday after regular business hours.

Texas Lawsuit

Also yesterday, Harris County in Texas was sued in federal court in Houston by the League of United Latin American Citizens over claims it discriminates against blacks and Latinos by disproportionately challenging their voter registration.

The county, which includes Houston, rejects voter- registration applications from zip codes dominated by Latino and black residents at a higher rate than it does applications from zip codes with predominantly white residents, the activists said in the complaint.

Don Sumners, the county’s voting registrar, said in an e- mailed statement that LULAC’s challenge “another unwarranted political lawsuit” similar to one filed in 2008 by the Texas Democratic Party. That case was resolved “when the Democratic Party was unable to produce a single person who had been illegally denied the right to register and vote,” he said.

Sumners, a Republican, said he’s already refused to remove any voters from election rolls as part of the state’s dead-voter purge program, a campaign he urged state officials to alter to keep from improperly deleting voters close to a presidential election.

Swing States

About half of the pending cases over voting are in states where both Democratic President Barack Obama and former Massachusetts Governor Mitt Romney, a Republican, contend they can win. In Ohio, a so-called swing state that no Republican has lost and captured the White House, both Obama and Romney see a path to victory.

Voting laws have been enacted by Republican-dominated legislatures across the country -- laws aimed partly at fighting voter fraud, proponents contend. Opponents argue they are an effort to limit votes for Democratic candidates.

During the past few months, the majority of challenges have been resolved against the laws, including an Oct. 2 decision in which a Pennsylvania judge barred enforcement of the state’s voter photo-identification law until after the election.

Likely Violation

In Ohio, officials said the state’s law didn’t disenfranchise anyone and allowed a more efficient election. A three-judge panel of the U.S. appeals court in Cincinnati disagreed, finding that the plaintiffs had “shown a likely equal-protection violation.”

Ohio’s secretary of state “failed to present evidence to the district court that other factors besides poll-worker error caused wrong-precinct ballots, and the state offers none now,” the panel said.

“Because the state offers no evidence of alternative causes, we find no clear error with the district court’s factual conclusion that most right-place/wrong-precinct ballots result, and will continue to result, from poll-worker error,” it said.

“We are currently reviewing the decision,” said Dan Tierney, a spokesman for Ohio Attorney General Mike DeWine.

The judges hearing the Ohio provisional ballot appeal were all appointed by Republican presidents. Julia Smith Gibbons and Deborah Cook were chosen by George W. Bush. Lee Rosenthal, a U.S. district judge from Houston, was selected by George H.W. Bush.

Union Suit

In the ballot lawsuit, the Service Employees International Union, Local 1, and other plaintiffs sued the Ohio secretary of state, seeking a statewide order that provisional ballots cast in the wrong precinct be counted.

The union argued that rejection of such ballots violates the rights of voters, particularly in locations that have multiple precincts, which are generally in urban areas.

In these locations, casting a ballot in the right precinct is dependent on the poll worker, according to the court filings. Plaintiffs said that accepting these ballots would prevent the disqualification of thousands of votes.

U.S. District Judge Algenon Marbley in Columbus on Aug. 27 ordered such ballot disqualification stopped. In 2008, Ohio rejected 14,355 so-called wrong-precinct ballots, according to the judge’s decision.

Marbley, appointed by President Bill Clinton, a Democrat, said that as a matter of law if a voter casts a ballot in the wrong precinct it’s the fault of a poll worker, unless the voter deliberately refused to go to the right polling place.

Wrong Precinct

To disqualify a voter who used the wrong precinct, the state would have to provide a sworn statement by a poll worker that this happened. The state appealed the decision.

The counting of wrongly cast ballots would “undermine the precinct system,” Fred Nelson, an attorney for the state, said at an Oct. 1 hearing before the appeals court. “If a vote counts even when cast in the wrong precinct, voters will be able to vote on issues that aren’t relevant to them.”

Disqualifying these votes “doesn’t undermine the fabric of the election,” Nelson said, asking the panel to throw out the earlier ruling. “The problem only affects 0.1 percent of all votes.”

Reversing Marbley’s decision would “indisputably result in the rejection of thousands of votes by lawfully registered voters that would otherwise have been protected from disqualifying poll-worker error,” lawyers for the union and a homeless advocacy group said in a filing with the appeals court.

‘Incredibly Unfair’

For about 80 percent of provisional votes cast in the wrong precinct, the voters were given the wrong ballots because of poll-worker error, plaintiffs’ lawyer Danielle Leonard told the appellate panel at the hearing. Rejecting these ballots would be “incredibly unfair,” she said.

“To disqualify those ballots after the election is not needed to uphold the precinct voter system,” Leonard said. “It’s the poll workers’ job to tell voters they’re in the wrong place, and it overrides voter error for going to the wrong location.”

In a telephone interview, plaintiffs’ lawyer Stephen Berzon called the decision “a great ruling” for thousands of Ohio voters who faced the prospect of having their ballots invalidated because they obeyed incorrect instructions.

Because of the court’s decision, said Berzon -- a partner in San Francisco’s Altshuler Berzon LLP -- the election winner “will be determined fair and square.”

The Ohio provisional-ballot cases are Service Employees International Union v. Husted, 12-4069 and Northeast Ohio Coalition for the Homeless v. Husted, 12-03916, U.S. Court of Appeals for the Sixth Circuit (Cincinnati).

The South Carolina case is South Carolina v. U.S., 12-cv-00203, U.S. District Court, District of Columbia (Washington). The Vermont case is U.S. v. Vermont, 12-cv-00236, U.S. District Court, District of Vermont. The Texas case is LULAC v. Harris County, 12-cv-03035, U.S. District Court, Southern District of Texas (Houston).

To contact the reporter on this story: Andrew Harris in Chicago at aharris16@bloomberg.net Margaret Cronin Fisk in Detroit at mcfisk@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net.

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