Settlement Reached on Counting Provisional Ballots

On election day, poll workers around the state deviated in certain ways from the voter ID rules set out in a November 1st consent order resulting from a federal lawsuit brought by several organizations against the Secretary of State. In particular, many poll workers required voters to cast a provisional ballot if they showed a valid drivers license for identification but the address did not match that shown in the voter registration list. Under the consent order an out-of-date address was not supposed to affect an otherwise valid drivers license, so those voters should have cast regular ballots. Also, at least one county board of elections was rejecting provisional ballots that did not include a birth date or address, despite the fact that the consent order required only the last four digits of a social security number.

Unlike regular ballots, provisional ballots are checked for voter eligibility before being counted. The most common problem with provisional ballots is casting them in the wrong precinct, which may have been simply a different table in the same polling place. Also, certain provisional ballots are not counted unless the voter provides the board of elections with supplemental information before a statutory deadline. Because of violations of the consent order, many ballots would be subject to scrutiny that would not have occurred if the consent order had been properly followed. Also, ballots from voters who relied on drivers licenses with out-of-date addresses might not be counted unless the voter comes forward with other identification after the election, a clear violation of the consent order.

Because the federal court retained jurisdiction to enforce the consent order, lawyers for the plaintiff organizations and the Ohio Secretary of State met and appeared before U.S. District Court Judge Judge Algenon Marbley in Columbus the last few days in order to hammer out an agreement on handling this situation. The Associated Press is reporting today on the agreement reached late last night:

Under the agreement, . . . provisional ballots cast in error will be counted without any additional investigation into their eligibility.

The agreement also allows observers to oversee, but not interfere, with county elections workers as they review provisional ballots and determine if they're eligible to be counted.

Subodh Chandra, a lawyer for the poverty and labor groups challenging the handling of the provisional ballots, said the agreement gives greater accountability to the process but still doesn't ensure that all legitimate provisional ballots will be counted.

"We consider this only a partial victory for Ohio's voters," Chandra said, adding that the groups had wanted to conduct a complete review of all provisional ballots that boards of election wanted to reject for any reason.

Instead, observers will receive a list of provisional ballots the boards want to reject because of inadequate identification. The observers can challenge rejections, but the ultimate decision on whether a ballot can be counted still lies with the county boards of elections.

I'm not certain that the newspaper account is an accurate reflection of the agreement reached and approved by the court. Hopefully I will get an update from a more reliable source and add the information to this post.