Further Update: On June 26, 2012, the Hamilton County Board of Elections voted 4-0 to drop its appeal to the Sixth Circuit Court of Appeals on the merits of this decision.
Update: On April 17, the Board of Elections voted to implement Judge Dlott’s order to count the ballots.
The race for a judgeship on the Hamilton County Juvenile Court between John Williams (now a sitting juvenile court judge despite all this) and Tracie Hunter is still unsettled, with Williams ahead by 23 votes. On February 8, after a trial last summer, U.S. District Court Judge Susan J. Dlott ruled that the Hamilton County Board of Elections must count provisional ballots cast in the right polling place but wrong precinct due to proven poll worker error, since it had counted 27 other such ballots cast in the wrong precinct at the Board of Elections. Read an analysis of her decision here. There are about 280 of these provisional ballots yet to be counted.
After the Board split 2-2 along party lines on whether to appeal Judge Dlott’s ruling to the Sixth Circuit Court of Appeals, Secretary of State Husted broke the tie in favor of appealing. Judge Dlott refused to stay her order pending appeal. So the Board filed another motion in the Court of Appeals, asking the Appeals Court to stay Judge Dlott’s order. By a vote of 2-1 on April 16, the Appeals Court denied the motion for a stay pending the appeal (which probably won’t be heard on the merits for at least a year). The majority was unpersuaded by the Board’s argument that it was in “an untenable position” because the district court’s ruling is contrary to Ohio law (which is that no ballots cast in the wrong precinct are to be counted, regardless of the reason.)
“As we previously noted, the equal-protection claim is a matter of federal law that did not rest with the state courts. Also weighing in the balance of harms, and against a stay, is the interest of Hunter and the public in a resolution of this 2010 election,” wrote the court. Judges Karen Moore and Guy Cole (coincidentally, both are Ohio judges) voted against the stay; Judge John Rogers (whose separate concurrence in the previous appeal I wrote sounded much more like a dissent) would have allowed it. Read the court’s order here.
When there is no stay, that means the show must go on. That means that even though the appeal of this case will probably still go forward on the merits because it raises important election issues far beyond this particular case, the provisional ballots will likely now be counted, so we many soon know who won this 2010 election.