Ohio Provisional Ballot Case Raises Several Big Questions – and a Fascinating Tiny One, Too


[Image courtesy of gyma]

Yesterday was a busy day in election law; courts in Minnesota and Ohio both handed down decisions that will most certainly have an impact on this fall’s election.

I’ll get to the Minnesota voter ID case later this week, but this morning I want to dig in – WAY IN – to yesterday’s federal court opinion in SEIU v. Husted. SEIU is the latest in a line of cases arising from a dispute over Ohio’s law about counting provisional ballots cast under the cloud of pollworker error. Ohio law – like laws in the majority of the U.S. – prohibits counting provisional ballots cast in the wrong precinct. The dispute in SEIU involves whether Ohio’s policy of not counting such ballots is appropriate when pollworkers, not voters, are responsible for the ballots being cast in the “wrong precinct”.

The legal issues in this case are fascinating; in fact, SEIU represents the first serious chance that the Supreme Court’s 2000 opinion in Bush v. Gore will serve as precedent – and could result in the higher federal courts (and maybe even the Supreme Court) to take another stab at what Bush v. Gore means in the context of election law across the nation. There is no one in the nation better at explaining and exploring such issues than Ohio State’s Ned Foley, and I highly recommend reading this commentary and following his future thoughts and writing on the subject.

I, on the other hand, want to think small – really small – in examining SEIU. Specifically, I want to consider this excerpt from the order:

It is hereby ORDERED that, within ten business days of this Order, Defendant Secretary
of State shall issue a Directive requiring that Ohio’s county boards of elections may not reject any provisional ballots cast by lawfully-registered voters in the November 2012 general election for the following reasons:

1. The voter cast his or her provisional ballot in the wrong precinct, unless the poll worker who processed the voter’s provisional ballot has:

a) determined the correct precinct for the voter;
b) directed the voter to the correct precinct;
c) informed the voter that casting the wrong-precinct ballot would result in all votes on
the ballot being rejected under Ohio law; and
d) the voter refused to travel to the correct precinct and insisted on voting the invalid ballot;

and the Board of Elections has verified that the precinct to which the poll worker directed the voter was the correct precinct for that voter.[emphasis added]

In theory, at least, all of that makes perfect sense – essentially, voters are given the benefit of the doubt unless there is evidence that they were provided with correct information (and the consequences of ignoring it) and still refused to use it.

That’s the theory, but think about it a moment: what does the form/document/envelope putting this into practice look like? The pollworker part is straightforward; s/he determines the precinct for the voter and indicates that on the form – if it’s wrong, then the ballot counts to the extent it would have in the voter’s correct precinct.

But what if it’s the other way around? More specifically, how can you design a form that says to a voter “I know I am in the wrong place and I’ve been told my ballot won’t count, but I’m casting it here anyway” – and make it so that the voter is willing to sign (or otherwise provide evidence of intent) that invalidates the ballot?

Without that language, the “willfully ignorant voter” exception (my phrase, not the court’s) in the SEIU order doesn’t cure the problem. Now, the number of such voters who exist in real life is likely to be small (and may in fact be theoretical) but it’s still a head-scratcher.

Bottom line: lots of big things happening in Ohio … but all of the little things that get stirred up in their wake are equally – if not more – vexing for the everyday practice of election administration.

4 Comments on "Ohio Provisional Ballot Case Raises Several Big Questions – and a Fascinating Tiny One, Too"

  1. Scott Konopasek | August 28, 2012 at 7:59 am | Reply

    The issue is less vexing if the question of whether the person is eligible to vote is considered separately from the question of whether they voted the correct ballot. For many reasons, most of them having to do with convenience for election officials, the two questions have been conflated into one. The problem is not inherent in provisional voting but is a creation of a poorly crafted attempt to prevent voters from casting votes on things they are not elibigle to vote on.

    Several states handle the situation by first determining if the voter is eligibile to cast a ballot at all. Once the voter is determined to be eligible, the question of which ballot (or which contests) the voter is eligible to vote on is considered. Regardless where the ballot is cast or the ballot style, votes for offices for which the voter is eligible are transfered to the correct ballot and the ballot is counted.

    The end result is more work for election officials but this process also results in eligible votes of eligible voters always being counted. Vexation over.

  2. Yes – but Ohio is not one of those states where “[r]egardless where the ballot is cast or the ballot style, votes for offices for which the voter is eligible are transfered to the correct ballot and the ballot is counted.” Hence, the legal/administrative strum und drang that is the line of cases culminating (for now) in SEIU.

    Vexation back on 🙂

  3. This is easy. The presumption of error just shifts off of the voter and onto the poll worker. The provisional ballot envelope can be designed in such a way as to document error or intention as well as it can be documented. Isn’t that the way it should be? Isn’t that the best we can do? Provisional ballots are for the convenience of the voter. I think the court is saying Ohio must be one of those states that “regardless where the ballot is cast…” to have a constitutional vote-counting system. The court is just allowing for the very unlikely possibility that there could be voters who do refuse to vote in the right place and those ballots do not have to be counted. This is not vexing. What’s vexing is ever throwing out a ballot because of an innocent error.

  4. Paul Stenbjorn | August 29, 2012 at 12:51 pm | Reply


    Your small point is not so small. In DC statute requires that voters can cast election day ballots in any precinct in the District and those ballots are counted to the extent possible given the voter’s home precinct/district assignments. Many thousands of voters cast these provisional ballots in DC because they are aware of this option. My suspicion is that if voters were offered this option elsewhere it would be used by many

    In DC poll workers are thoroughly trained in completing provisional ballot envelopes however poll worker error accounts for a substantial percentage of ballots not counted. Better envelope design is part of the issue. However the issue is inherent in having temporary staff assist voters in understanding sometimes terribly arcane election laws and translating that into a coherent representation of the information on an envelope completed in a busy polling place with lines of impatient voters. This is truly vexing.

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