Election Suits Start Early With Florida, Ohio Challenges

Florida Democrats sued to extend early voting hours after the state’s Republican governor declined to do so, while voter advocates in Ohio sought clarification on how provisional ballots will be counted following an order by Republican officials there.

The Florida suit, filed in federal court in Miami, was brought because of Governor Rick Scott’s “refusal to follow precedent and extend early voting hours in the face of unprecedented voter turnout in South Florida,” Rod Smith, chairman of the Florida Democratic Party, said yesterday in a statement posted on the party’s website.

“Voting is a fundamental right, and we all have an interest in assuring that all Americans have effective opportunities to vote,” Smith said. “Florida’s Republican state legislature has already reduced the number of days to early vote by six days.”

The party said it had asked Scott earlier in the week to extend hours for early voting, which ended Nov. 3 at 7 p.m., through yesterday because of record turnout and waits of as long as four hours at some locations.

An NBC News/Wall Street Journal/Marist College survey of likely voters released Nov. 3 showed the state was a tossup, with President Barack Obama, a Democrat, ahead 49 percent to 47 percent over Republican challenger Mitt Romney. That’s within that survey’s 2.5 percentage point margin of error.

Ohio Lead

An Ohio poll by the same organizations, also released Nov. 3, put Obama ahead of the former Massachusetts governor 51 percent to 45 percent. The survey had a 3.1 percentage point margin of error. No Republican presidential candidate has won election without carrying Ohio, one of a handful of swing states that may determine the Nov. 6 election’s outcome.

Chris Cate, a spokesman for the Florida Department of State, which oversees the state Division of Elections, said the Democrats were asking for something that’s been allowed for weeks. Three counties targeted in the lawsuit were accepting in-person absentee ballots yesterday, Cate said.

“We’ve never made a secret of the fact that there are multiple ways to vote, including absentee balloting,” Cate said in a phone interview.

The Florida Democratic Party said yesterday in a separate e-mailed statement that voters in five counties that include Miami, Tampa and Orlando were still able to cast absentee ballots. A state court judge in Orange County allowed the extension of early voting there through yesterday afternoon.

Absentee Ballots

Lawyers for the Democratic Party filed a motion for a temporary restraining order today, asking the court to order election officials in Broward, Miami-Dade and Palm Beach counties to allow in-person absentee ballots through election day, citing the long lines at early-voting sites.

The relief sought has already been provided in Palm Beach, county Supervisor of Elections Susan Bucher said in a separate filing today. Palm Beach County began allowing in-person absentee voting yesterday and is providing it again today, Bucher said.

In Ohio, lawyers representing a union and homeless coalition are suing the secretary of state over provisional ballots filed a new motion in the case on Nov. 2 asking a federal judge to clarify which votes would be counted.

Ohio Secretary of State Jon Husted, a Republican, released a directive to county election boards that day indicating officials should reject provisional ballots unless a voter provided one form of accepted identification or returned within 10 days with the proper information.

State Directive

The accepted ID includes the last four digits of the voter’s Social Security number, the voter’s driver’s license, “or a notation that the voter provided another form of acceptable identification,” according to the directive.

Lawyers for the Northeast Ohio Coalition for the Homeless and the Service Employees International Union argued the new instructions went beyond what a federal appellate court ordered and would unfairly punish voters for poll workers’ errors. The groups filed an emergency motion asking the court to clarify the instructions boards of elections should follow.

U.S. District Judge Algenon Marbley on Oct. 26 ordered that provisional ballots be counted even if they were cast in the wrong polling location due to poll worker error. The U.S. Court of Appeals in Cincinnati stayed the district court decision on Nov. 1, preventing it from taking effect by Election Day, saying the union was unlikely to succeed on its claim that failure to count all provisional ballots violated the U.S. Constitution.

Hearing Set

Marbley today ordered Husted to respond to the emergency motion by tomorrow. He set a hearing for the day after election for oral argument. Though Marbley won’t decide on the issue before Election Day, he said he set an expedited schedule to resolve the question before provisional ballots must be counted Nov. 17.

Provisional ballots in Ohio will be counted at public meetings held from Nov. 17 to Nov. 21, Marbley said in today’s order.

Marbley and the appeals court had earlier ordered that provisional ballots cast in the wrong precinct and right polling place be counted. The union and homeless coalition had sought to expand this to votes cast in any polling place. The earlier ruling allowing for counting ballots cast in the wrong precinct, correct polling location is still in effect. Husted’s Nov. 2 order reflects this.

Provisional Ballots

Provisional ballots are usually cast when a voter’s credentials are challenged or inadequate and counted after the polls close. Ohio allows voters to provide identification within 10 days after the election to validate the provisional ballot. Voters not on election rolls because of clerical or other errors will also cast provisional ballots. Provisional ballots are counted if the voter is verified as eligible.

The Ohio 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). The Florida case is The Florida Democratic Party v. Detzner, 12-cv-24000, U.S. District Court, Southern District of Florida (Miami).

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