The November 10 2010 Juvenile Court election has remained in jurisprudential limbo, with John Williams last ahead by 23 votes. (He has since become the Juvenile Court’s administrative judge, appointed to the seat due to the unexpected retirement of the incumbent, Judge Karla Grady). Challenger Tracie Hunter filed a lawsuit in federal court asserting an equal protection violation over the Hamilton County Board of Elections decision to count some provisional ballots cast in the wrong precinct but not others. Read the background post on this matter here and here.
Last July, Chief Judge Susan Dlott of the U.S. District Court, Southern District of Ohio, held a trial to determine which, if any, provisional ballots cast in the wrong precincts, should be counted. On February 8 she issued a 93 page opinion in the case, which you can read in its entirety at this link. (Allow yourself a couple of hours to read this fascinating election law compendium).
Under Ohio law, ballots cast in the wrong precinct aren’t to be counted, regardless of the reason. But in the election for Juvenile Court in November of 2010, the Hamilton County Board of Elections decided to count 27 provisional ballots cast in the wrong “precinct” at the Board of Elections itself, because the only possible explanation for this was poll worker error. The Board was able to determine this from information on the outer envelopes containing the provisional ballots. Judge Dlott has now ruled that the Board must also count other provisional ballots cast in the wrong precincts due to demonstrated poll worker error.
“The point is that the Board concluded that there was sufficient evidence to overcome that presumption (that there was not poll worker error) with respect to wrong-precinct ballots cast at the Board office, but not with respect to wrong-precinct ballots cast at correct polling places. The Board came to these differing conclusions because it did not apply a uniform standard in determining what evidence “demonstrated” poll-worker error…Equal protection demanded that the Board consider right-location wrong precinct ballots on the same terms as ballots cast at the Board office.”
Interestingly, in coming to this conclusion, Judge Dlott determined that the additional investigations into poll-worker error beyond the 27 ballots counted at the Board of Elections had been unnecessary, because it should have been evident to the Board at the time (November of 2010) for the same reasons error was apparent on the 27 ballots miscast at the Board of Elections. This determination partially harmonizes Judge’s Dlott’s decision with the Supreme Court of Ohio’s reasoning in granting a writ of mandamus in State ex. rel Painter v. Brunner, although as the Judge herself noted, she still fundamentally disagrees with the Ohio Supreme Court’s conclusion that the evidence available to the Board of Elections in November of 2010 was insufficient to show poll worker error outside the 27 ballots miscast at the Board of Elections. Additionally, the evidence that was unearthed from the investigation of poll worker error is chilling in what it disclosed about the ability of poll workers to handle fundamental election day provisional ballot issues, despite their training.
While the exact number of these ballots still to be counted isn’t certain, it is estimated to be about 300. Because most of the uncounted provisional ballots are in more heavily democratic areas, this ruling undoubtedly favors Tracie Hunter.
There was a second part of Judge Dlott’s decision that was particularly intriguing, and that was the due process aspect of this challenge. This undecided issue is as interesting as the equal protection issue that was decided.
When this case was appealed to the U.S. Court of Appeals for the Sixth Circuit, the author of the decision, Judge Karen Moore, wrote this about the fact that Ohio election laws do not allow ballots cast in the wrong precinct to be counted, regardless of the reason, including being directed to the wrong precinct in the right polling place by a poll worker:
“Ohio has created a system in which state actors (poll workers) are given the ultimate responsibility of directing voters to the right location to vote. Yet, the state law penalizes the voter when a poll worker directs the voter to the wrong precinct, and the penalty, disenfranchisement, is a harsh one indeed. To disenfranchise citizens whose only error was relying on poll-worker instructions appears to us to be fundamentally unfair. ..Particularly when there is evidence of poll-worker error, the categorical treatment of miscast ballots provided toOhiolaw is troubling.”
In her conclusion section, Judge Dlott picked up on Judge Moore’s comment. Judge Dlott wrote, “Ohio’s precinct-based voting system that delegates to poll workers the duty to ensure that voters are directed to the correct precinct but which provides that provisional ballots cast in the wrong precinct shall not be counted under any circumstance, even where the ballot is miscast due to poll-worker error, is fundamentally unfair and abrogates the Fourteenth Amendment’s guarantee of due process of law. However, because Plaintiffs did not challenge the constitutionality of Ohio’s election statutes (editor’s note—a constitutional challenge requires notice to the Ohio Attorney general, which didn’t happen here) this Court is without jurisdiction to order a remedy. ” The Judge’s language seems to be inviting such a challenge. That will be an interesting case indeed.