On election night, Nov. 2, 2010, in the race for Hamilton County Juvenile Court Republican John Williams was ahead by 2,847 votes— 10,500 provisional ballots were not included in that count. A provisional ballot is one cast where there are questions about a voter’s eligibility. For example, voters who don’t have the right form of identification, or who recently changed their name or address and didn’t update their registration can cast a provisional ballot. Whether a provisional ballot gets counted depends on verification of the voter’s eligibility.
On Nov. 16 the Board of Elections met. The members of the Board are: Alex Triantafilou, chair of the Hamilton County Republican Party; Tim Burke, chair of the Hamilton County Democratic Party; Caleb Faux, executive director of the Hamilton County Democratic Party; and Chip Gerhardt, former vice chair of the Hamilton County Republican Party. Any tie votes are broken by the Ohio Secretary of State, which at the time, was Democrat Jennifer Brunner. After the election it was Republican John Husted. whose term began Jan. 9, 2011. Sec any problems brewing?
At the Nov. 16 Board of Elections meeting, the Board took up the question of the provisional ballots. Most of the 10,500 provisional ballots were fine and were counted. But the Board unanimously agreed that 850 of the provisional ballots were invalid and should not be counted because they were voted in the wrong precinct. Under Ohio law, ballots cast in the wrong precinct cannot be counted, regardless of the reason. Nevertheless, the Board unanimously decided to count 27 provisional ballots cast in the wrong precinct at the Board of Elections itself during early voting because the wrong ballots were given to the voters by Board staff. When voting at the Board of Elections, an employee hands you the ballot for the precinct you live in when you show your lD. So the only possible reason for voting in the wrong precinct at the Board of Elections, which doesn’t actually have “precincts” was because of a mistake by one of the election workers there. How did the Board figure out that there was a mistake in those 27 ballots? Just by looking at the provisional ballot envelopes. It turns out that this seemingly simple decision started this incredible not-yet-ended saga.
After counting all the rest of the valid provisional ballots, the final count indicated Williams won the election by 23 votes.
On Nov. 21. Tracie Hunter, Democratic candididate for Juvenile Court judge went to federal court and filed a lawsuit arguing that the Board had violated her federal constitutional rights to due process and equal protection by counting some mistakenly-cast provisional ballots, but not others. She asked Judge Susan Dlott, Chief Judge of the U.S. District Court, Southern District of Ohio, to order the Board of Elections to investigate whether poll worker error caused the other 850 provisional ballots to be cast in the wrong precinct through no fault of the voter. Judge Dlott granted this request, and directed the Board of Elections to determine whether poll worker error contributed to the rejection of those ballots, and to count any ballots miscast due to poll worker error.
Secretary Brunner issued a series of directives to the Board on how to go about this process. Unlike ballots wrongly cast at the Board of Elections, where poll worker error could be determined by simple clerical review, this set of ballots required extensive questioning of poll workers. The Board began issuing subpoenas to poll workers to testify under oath. Brunner directed the Board to count any of the 850 provisional ballots for which there was evidence the poll-worker error caused the voter to cast a ballot in the wrong precinct. In response to this directive a Hamilton County elector, John Painter, along with candidate John Williams, filed an action directly in the Supreme Court of Ohio to stop all of this.
Meanwhile. back at die Board of Elections, having concluded its investigation, the Board unanimously approved the counting of 16 of the disputed 850 ballots, unanimously rejected 565 of them which were cast at the wrong polling place, and disagreed 2-2 about the other 269 ballots cast in the right polling place but wrong precinct. Brunner broke the tie by ordering about half of these counted.
On Jan. 7, the Ohio Supreme Court weighed in. The fundamental principle the Supreme Court underscored is that Ohio law does not authorize the counting of any provisional ballot cast in the wrong precinct. There is no exception for ballots cast in the wrong precinct due to poll-worker error. The court found Secretary Brunner’s directives to investigate the 850 provisional ballots for poll worker error to be contrary to Ohio law. But here’s the rub. If Ohio law does not have any exception that allows for counting ballots cast in the wrong precinct due to poll worker error, those 27 wrongly cast ballots at the Board of Elections never should have been counted, but they were.
It is absolutely clear from reading the Ohio Supreme Court decision that the Court believed the counting of any provisional ballots cast in the wrong precinct to be contrary to Ohio law, would gladly have said don’t count any of those ballots, and as a result then declared Williams winner of this election. But it couldn’t do that, with 27 wrongly-cast ballots already counted. Why? Remember Bush v. Gore? Federal due process and equal protection principles tell us that you cannot count some provisional ballots disqualified because of poll worker error, but not others. And furthermore, why should a voter be disenfranchised if poll workers directed them to the wrong precinct in a polling place?
So, in order not to have all out warfare with the federal court, the Ohio Supreme Court said ok, you can review the 850 provisional ballots that are the subject of Judge Dlott’s order, but only with the same kind of superficial, look at the paper-only kind of review that you did with those other 27 provisional ballots, No more subpoenaing or questioning poll workers. Secretary Husted issued some directives to conform to this ruling.
Meanwhile, Hunter asked Judge Dlott to enforce her injunction and order the Board to count the ballots where they had already found poll worker error. Judge Dlott agreed and ordered the Board to count 165 ballots. The Board of Elections thought it was stuck between disobeying either the Ohio Supreme Court’s ruling or Judge Dlott’s order, so it appealed Judge Dlott’s order to the US Court of Appeals for the Sixth Circuit, which sits here in Cincinnati.
The appeals court heard arguments on an expedited basis, and issued a ruling Jan, 27. In a panel on which two judges were appointed by President Clinton, and one by President Bush, the Court unanimously held that it was a violation of the equal protection clause of the U.S. Constitution to count some ballots cast due to poll-worker error, but not others. But the Court also held that it was premature for Judge Dlott to have identified exactly which of the disputed provisional ballots should be counted, and sent the case back to Judge Dlott to allow all affected parties to weigh in on this issue. It seems clear, more provisional ballots are going to be counted, and because most come from heavily Democratic precincts, this decision is favorable to Tracie Hunter.
As a matter of law, what happens if a state supreme court says one thing and a U.S. district court another? Here’s what the Ohio Supreme Court said:
“It has long been settled that the Supremacy Clause binds state courts to decisions of the U.S. Supreme Court on questions of federal statutory and constitutional law. But as for decisions of lower federal courts, this court has observed that we are reluctant to abandon our role in the system of federalism created by the U.S. Constitution until the US Supreme Court directs us otherwise….We are not bound by rulings on federal statutory or constitutional law made by a federal court other than the U.S. Supreme Court. We will,
however, accord those decisions some persuasive weight.”
Translation: unless you are the U.S. Supreme Court, you can’t tell
us what to do.
And the response from the federal appeals court? It is not the state court’s business to resolve a federal equal-protection claim filed and pending in federal court.
Things are heating up. Bush v. Gore 2 anyone?