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Ohio’s Provisional-Ballot Rule Unfair, Judge Says

The Ohio secretary of state’s new rule on counting provisional ballots risked denying citizens’ rights to vote and ignored state law, a federal judge said.

Ohio Secretary of State Jon Husted, a Republican, issued a directive to county election officials on Nov. 2 requiring the rejection of a provisional ballot if the voter failed to record the type of identification used when casting the vote.

A labor union and a homeless advocates’ coalition asked U.S. District Judge Algenon Marbley in Columbus, Ohio, to stop authorities from rejecting such ballots, citing an Ohio law that requires poll workers, not voters, to record the information. Marbley found the rule “violates substantive due process,” and ordered the ballots counted where voters didn’t provide the type of identification.

“For an executive official of the state to flout state law in arbitrarily reassigning a poll worker’s statutory duty to a voter, with the result being the disenfranchisement of the voter, is fundamentally unfair and constitutionally impermissible,” Marbley said yesterday in a 17-page ruling. The rule “imposes an impermissible burden,” he said.

The lawsuit is one of more than two dozen that contested statutes and rules imposed since Obama’s election in 2008 by Republican-dominated legislatures and officials across the country -- measure aimed in part at fighting voter fraud, proponents contend. Opponents argue they are an effort to suppress the votes of lower-income people and the elderly who may be more inclined to vote for Democrats.

Ballot Integrity

Lawyers for the state contended at a Nov. 7 hearing before Marbley that the rule was necessary to protect the integrity of the ballot, the judge said. He rejected the argument and criticized the fact that Husted’s directive was issued four days before the Nov. 6 election.

“The secretary, by admission of counsel, engaged in no fact-finding which suggested such a change would improve the integrity of the voting system,” Marbley said. “The surreptitious manner in which the secretary went about implementing this last minute change to the election rules casts serious doubt on his protestations of good faith.”

Husted will appeal the ruling “because it allows potentially fraudulent votes to be counted,” Matt McClellan, the secretary’s spokesman, said today in an e-mail.

“By eliminating the ID requirement on provisional ballots, the ruling is contrary to Ohio law and undermines the integrity of the election,” he said.

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 last week.

More than 200,000 provisional ballots were cast in Ohio this election, according to state officials.

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 reporter on this story: Margaret Cronin Fisk in Detroit at mcfisk@bloomberg.net.

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