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Ohio Rules May Bar Counting of Some Ballots, Lawyers Say

The Ohio secretary of state’s rules on counting provisional ballots burden citizens unfairly and may cause votes to be thrown out improperly, two advocacy groups told a federal judge, as legal wrangling over voter issues continued the day after the presidential election.

Lawyers representing a union and a homeless advocates’ coalition asked U.S. District Judge Algenon Marbley at a hearing today in Columbus, Ohio, to clarify the standards by which votes will be counted following a Nov. 2 directive to county election boards from Ohio Secretary of State Jon Husted, a Republican,.

Ohio officials contend that Husted’s order, which requires voters to fill out part of a ballot form regarding their identification, didn’t change existing rules. Lawyers for the Northeast Ohio Coalition for the Homeless and the Service Employees International Union, who sued Husted, argued his instructions went beyond what a federal appeals court ordered, illegally shifting the burden for correct paperwork to voters from poll workers.

“Voters should not be disenfranchised due to poll-worker error,” plaintiffs’ attorney Barbara Chisholm told Marbley at the hearing today. “It’s the poll workers’ duty to record this information.”

Lawyers for the state have “a lot of explaining to do,” Marbley told them at the hearing.

‘Democracy Dies’

“What concerns me is that it was filed on a Friday night at 7 p.m.,” he said, referring to Husted’s order. “The first thought that came to mind was democracy dies in the dark.”

The directive appears to contradict court rulings and state law by ordering the disqualification of ballots, Marbley said.

“You haven’t shown me a law or any facts that justify this,” he said.

Marbley said he would make his decision by Nov. 12.

A provisional ballot is used when a voter’s credentials are challenged or inadequate. Ohio allows voters to provide identification within 10 days after the elections to validate the provisional ballot. The tally will be made at public meetings from Nov. 17 to Nov. 21, Marbley said in a court filing this week.

More than 200,000 provisional ballots were cast in Ohio this election, according to state officials. Obama won the state by about 100,000 votes yesterday, meaning Romney would have to win the count by 3 to 1 to surpass the president. Provisional ballots usually skew Democratic, lawyers for the plaintiffs said.

‘11th Hour’

The state requires all voters to provide some form of identification to vote, Ohio Attorney General Michael DeWine said in court papers filed yesterday. The plaintiffs aren’t seeking a clarification of the rules, “but an 11th hour expansion of them,” DeWine said.

“Plaintiffs want to have different identification requirements for provisional voters” than for absentee voters or those who vote on Election Day, DeWine said. “Plaintiffs now want the court to order the counting of defective provisional ballots even if the voter fails to fill out the portion of the affirmation regarding identification, and indeed even if the voter does not provide any identification at all.”

Under the Ohio election code, voters have “certain obligations,” Aaron Epstein, a lawyer for the state, said at the hearing. That includes filling out the top half of the affirmation on the provisional ballot to verify identification, he said.

‘A Command’

Ohio election code requires that the “appropriate election official shall record type of ID provided,” Marbley said. “That is unambiguous. That is a command.”

Nothing in the Ohio code “absolves poll workers of responsibility,” he said. “In pristine form, the poll worker has to provide the type of information provided.”

“I don’t agree with the interpretation,” Epstein replied.

“I’m not talking about interpretation, I’m talking about reading it,” Marbley said.

The Ohio case is one of multiple lawsuits in federal and state courts in the U.S. over voter regulations passed by Republican-dominated legislatures since the 2008 election. Many of the suits are pending after judges declined to enforce the rules for this election.

ID Laws

The laws included new requirements for voter identification or registration and changes to early voting hours. The laws were aimed in part at fighting voter fraud, proponents contend. Opponents argued they are an effort to limit votes for Democratic candidates.

Over the past several months, the majority of court challenges have been resolved against the laws, or judges postponed decisions until after the election. The lawsuits pending final resolution include a challenge to Pennsylvania’s new voter photo-ID law and a Texas law limiting voter registration efforts in that state.

In the Ohio case, Marbley and the U.S. Court of Appeals in Cincinnati earlier ordered Husted to count provisional ballots that were cast in the right polling location but in the wrong precinct. In urban areas, many polling places serve multiple precincts.

The union and homeless coalition had sought to expand this to votes that were miscast in any polling place, regardless of whether the right precinct was included in that location.

Marbley agreed in an Oct. 26 order, though the appeals court stayed the district court decision, preventing it from taking effect by Election Day.

The panel said the union was unlikely to succeed on its claim that failure to count all provisional ballots violated the U.S. Constitution.

The cases are Service Employees International Union, Local 1 v. Husted, 12-cv-00562, and Northeast Ohio Coalition for the Homeless, 06-cv-00896, U.S. District Court, Southern District of Ohio (Columbus).

To contact the reporters on this story: Margaret Cronin Fisk in Detroit at mcfisk@bloomberg.net; Denise Trowbridge at federal court in Columbus, Ohio.

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