Provisional Ballot Update

Yesterday I spoke to Subodh Chandra, one of the lawyers for plaintiffs in the voter ID litigation, and got a little of the back story on the Agreed Enforcement Order entered two days ago.

The litigation team in that case received numerous reports on election day and afterward about violations of the law and the November 1st Consent Order on how the voter ID requirements were to be applied in the general election. Confused poll workers were requiring voters to cast provisional ballots in situations where the identification presented clearly qualified for a regular ballot:

* Valid Ohio driver's license with former address.

* Public school identification card (qualifies as "other government document" so long as it has voter's name and current address).

* Paycheck or utility bill.

* Concealed carry permit (another example of "other government document").

Accordingly, the litigation team brought to a status conference before U.S. District Court Judge Algenon Marbley on Thursday, November 9th, a proposed consent order that would grant a reasonable, narrowly-tailored remedy to correct these violations. What they asked for was that every board of elections in the state, on request by observers to the counting of provisional ballots, would be required to provide a list of all provisional ballots that the board proposed to reject, with reasons for the rejection and access to (or a copy of) the envelope in which the provisional ballot was cast. The proposal was for a daily list, but a list at the end of the counting would have been satisfactory so long as the observers were given time to respond before the final decision was made. The list wouldn't be all provisional ballots, just those the board intended to reject.

Chandra pointed out to me that there is nothing inherently partisan about this proposal. It is based simply on the idea that every vote should be counted, i.e., that the voter ID requirement shouldn't be an impediment to the counting of valid votes. To the dismay of the litigation team, the attorneys for the Secretary of State and the Attorney General complained that the proposed order was too burdensome, and even went so far as to argue that there should be no remedy at all. Lawyers from the Franklin County prosecutor's office, ostensibly on hand to represent the county board of elections, protested that no remedy was necessary because the violations weren't intentional, and the other government attorneys seemed to go along with this outrageous position. Of course, it doesn't matter if the deprivation of a constitutional right is intentional or negligent, it still must be preserved or the right is meaningless.

The government attorneys tried several times to walk away from the negotiations that followed, but the judge heroically forced some kind of agreement out of the contentious situation. (If there had been no agreed order the plaintiffs could have sought a ruling by the judge, but that ruling could have been appealed to the 6th Circuit Court of Appeals with unpredictable results.) The government lawyers eventually backed down from their extreme position of "no remedy" and agreed that provisional ballots that should have been cast as regular votes (because the voters presented ID acceptable under the Consent Order) "should automatically be counted as regular ballots," and that observers would be provided on request with a list of provisional ballots that the boards intended to reject and reasons for such rejection "only in those cases where the proposed rejection is as a result of the application of voter identification provisions of Title 35 of the Ohio Revised Code and this Court's November 1, 2006 Consent Order."

Chandra considers this only a partial victory for voters. The order does not necessarily insure that all provisional ballots will be counted in the full light of day. Observers have the opportunity to object, but only as to provisional ballots on the list, and the boards will put together this list on their own without producing the envelopes that reflect voter information. Observers are supposed to take election officials at their word as far as the accuracy of the list, but such officials have already made mistakes in the voter ID process leading up to this order. As Chandra pointed out, a question that really needs to be asked is why the government attorneys, who profess their agreement that every vote should be counted, fought to shield any part of the counting process from full scrutiny? Whose interests are they really representing?

Moreover, this episode makes very clear why we should all be gratified that we have a new Secretary of State and Attorney General. Chandra pointed out that it is unimaginable that Ohio's new officials in these positions, former judge Jennifer Brunner (D-Columbus) and State Sen. Marc Dann (D-Liberty Township) respectively, would ever make an effort to shield violations of constitutional rights. The government lawyers here resisted complete accountability and complete transparency, which serves only to diminish public confidence in the integrity of the voting process.

Meanwhile, efforts by Congressional candidates Mary Jo Kilroy (D-Columbus) and Victoria Wulsin (R-Indian Hill) to insure the counting of all provisional ballots continue, as reported in the Cincinnati Enquirer political blog Politics Extra and today's Chillicothe Gazette. Wulsin is trying to overcome a 2,865 deficit out of some 8,600 uncounted ballots, while Kilroy has 3,536 to make up out of close to 20,000 uncounted ballots.

One of the critical dimensions in this effort concerns voters who did not write the last four digits of their social security number on the envelope containing their provisional ballot. Wulsin's campaign says that poll workers often failed to ask for the numbers, as required by law. The Wulsin and Kilroy camps are engaged in a massive effort to call provisional voters and encourage them to call their Boards of Elections by tomorrow's deadline for providing the missing information. (There was a report that Wulsin and Kilroy had also filed a lawsuit to require boards of election to provide a list of provisional ballots, but the election law blog at Moritz College of Law indicates that this is not true.)

The Enquirer blog reports that Barry Bennett, chief of staff for Rep. "Mean Jean" Schmidt (R-Loveland), asserted that "voters can’t go back and update their ballots or provide missing forms of ID." This is just plain wrong. The Secretary of State's web site states the correct rule this way: "A person who casts a provisional ballot and does not provide acceptable proof of identity at the time of voting is allowed to provide such proof within 10 days after the election, in accordance with law." All provisional voters who did not provide the last four digits of their social security number when casting their provisional ballot should call their board of elections today or tomorrow.

UPDATE: Victoria Wulsin and her campaign manager Mary Huttlinger held a press conference this morning with State Rep. Steve Driehaus (D-Cincinnati) and John Smith, the mayor of Silverton, Ohio, to discuss provisional ballots and call for the counting of every vote. Smith is one of the thousands of voters required to cast a provisional ballot on November 7th. From the press release:

The speakers will explain the provisional ballot process, discuss the increase in provisional ballots caused by confusion at the polls in the wake of House Bill 3, and address the Schmidt campaign's potentially illegal public statements misleading provisional voters about their rights.

2nd UPDATE: Alphonse Gerhardstein, an attorney for Wulsin, has fired off a letter to Schmidt chief of staff Barry Bennett demanding a retraction of his incorrect statement to the Enquirer, citing to the relevant provision of the statute (Ohio Rev. Code sec. 3505.181(B)(8)). Also, the Ohio Democratic party has issued a press release denouncing Bennett's comment:

“Bennett’s insistence that people cannot update their information for their provisional ballot is just wrong, and he should be ashamed that he could disenfranchise voters by giving out and disseminating false information. As Schmidt’s Chief of Staff, he should know better,” said Ohio Democratic Party Chair Chris Redfern. “Voters can provide missing forms of ID to boards of elections until tomorrow."