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You are here: Home / Politics / Activist Judges! / A (provisional) win for democracy enthusiasts

A (provisional) win for democracy enthusiasts

by Kay|  April 17, 20122:16 pm| 34 Comments

This post is in: Activist Judges!

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Republicans have to count the votes:

A federal appeals court ruling Monday cleared the way to count some 300 disputed ballots in the razor-close election for Hamilton County juvenile court judge, which took place 17 months ago.
The decision does not end the long court battle over the ballots, but it requires county election officials to count the ballots, declare a victor and seat the winning judge while the legal fight continues for months, or even years, in the federal courts.

The dispute involves provisional ballots cast in the 2010 juvenile court election between Democrat Tracie Hunter and Republican John Williams. Williams leads by 23 votes, but Hunter could surge ahead when the disputed ballots are counted because they were cast in predominantly Democratic precincts.

Voters cast the provisional ballots at the correct polling places but at the wrong precinct table, an error known as “right church, wrong pew.” Hunter and the Democrats have argued it is unfair to exclude the ballots because evidence suggests poll-workers mistakenly directed voters to the wrong tables. Williams and the Republicans say the ballots were miscast and Ohio law does not allow them to be counted.

U.S. District Judge Susan Dlott ordered the Board of Elections to count about 300 of the provisional ballots. The reason, she said, was the board’s decision to count disputed ballots cast at the board’s downtown office while excluding disputed ballots cast at other locations. Dlott said that decision violated federal election law because it treated one set of ballots differently than another.
In its decision Monday, the U.S. 6th Circuit Court of Appeals in Cincinnati backed Dlott and ordered the county to count the ballots.
The three-judge panel rejected the Republicans’ request to halt the counting while it continues to challenge Dlott’s ruling, concluding that their argument “has not shown a likelihood of success on the merits.”

It’s a good result, and they’re finally going to count the votes that came from predominantly Democratic precincts, but what this absolute mess of an election shows is that the provisional balloting process is flawed and really unreliable. People are trying. They’re just not getting it right.

The federal judge reviewed poll worker and voter testimony and that testimony made it clear that the provisional balloting rules (which are complicated, and change constantly) are not applied with any consistency or predictability. Some voters were given provisional ballots when they should have been given first class ballots, and many people were directed to the wrong precinct within a polling place as a result of the provisional balloting process itself, which involves being pulled out of the line and sent off to use a whole different process. Because there is more than one precinct within a polling place, chaos ensues.

Provisional balloting is a false assurance that voting rights will be protected. In that sense, it’s more unfair to voters than a straight denial, because it gives the appearance of a rational, predictable process that protects voting rights, when that simply isn’t true, real-world. With a straight denial of the franchise, at least the voter knows her vote isn’t being cast or counted and she can act on that knowledge in the future and hold politicians who support additional barriers to voting accountable for their denial of her right. Understand, the poll workers who testified weren’t acting maliciously. This wasn’t a conspiracy. They simply didn’t understand the process, or arbitrarily modified the process to be “on the safe side”, depending on their own judgment. Their own judgment always seemed to lean toward “provisional ballot”. I think that kind of “belt and suspenders, better safe than sorry” attitude is common among even well-intentioned people who are confronted with a new or unfamiliar or constantly changing set of rules. Voters didn’t know enough about the provisional balloting process to object. They simply wanted to vote. They followed poll worker directions.

As voter ID laws push more and more people onto provisional ballots, expect many, many more of these lawsuits in close elections.

Still, counting all the votes is much better than counting just the votes that are more likely to be Republican votes, so this one is a win, no matter which judge ends up on the bench.

Here’s the order (pdf)

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34Comments

  1. 1.

    Martin

    April 17, 2012 at 2:18 pm

    Democratic precincts, but what this absolute mess of an election shows is that the provisional balloting process is flawed and really unreliable. People are trying. They’re just not getting it right.

    Feature, not bug.

  2. 2.

    dmsilev

    April 17, 2012 at 2:25 pm

    I had a near-experience with provisional balloting in the IL primary. I went to the wrong polling place (i.e. the place I had gone for the previous election, not realizing that my precinct had changed because of redistricting). The workers there offered me a choice of a provisional ballot or to hang around for a few minutes while they figured out where I was supposed to go. I took the latter option, and they routed me to the correct polling location.

    That’s fine for a primary with a turnout approaching zero. The poll workers could afford to take five minutes to call someone at the city elections board and look up the proper location for my home address. For a general election, I doubt I’d be given that option. Provisional or nothing, most likely.

  3. 3.

    eldorado

    April 17, 2012 at 2:27 pm

    great stuff, as always @Kay

  4. 4.

    Kay

    April 17, 2012 at 2:32 pm

    @dmsilev:

    I got to where I would send voters to the county bd of elections if they had long, convoluted stories, because I’m “better safe than sorry” the other way, towards making sure the vote is validly cast and counted, and I didn’t want to introduce any subjectivity into it, down the line, if it was close.

    I knew they’d be in the right precinct if they were at the bd of elections. That would only work in a county like mine, though, where the board of elections is 5 miles from my precinct.

  5. 5.

    JGabriel

    April 17, 2012 at 2:36 pm

    Kay @ Top:

    Understand, the poll workers who testified weren’t acting maliciously. This wasn’t a conspiracy.

    This time.

    Who’s to say what will happen, in Ohio, in a presidential election year? Kay makes the excellent point that the provisional balloting system doesn’t work even when intentions are good.

    I don’t expect every precinct to be staffed by good, well-intentioned, people in a presidential election year, particularly in a swing state where the state government — i.e. the people who count the vote — is dominated by right-wing Republican extremists like John Kasich.

    .

  6. 6.

    butler

    April 17, 2012 at 2:37 pm

    People are trying. They’re just not getting it right.

    Some are trying. And some are trying to thwart their efforts.

  7. 7.

    Steve

    April 17, 2012 at 2:53 pm

    We have a school board election today in my town. A bunch of people have been reassigned to new precincts, some of which are in obnoxious locations out of walking distance, and while this is likely just good old-fashioned incompetence you have people talking about disenfranchisement and dirty tricks as well. One of the city council members, who is backing a slate of school board candidates, has stationed cars at a bunch of polling places in order to offer people rides if they get told they’ve come to the wrong precinct.

    The county has assured people that everyone will receive at least a provisional ballot, but even that isn’t getting done right. The people manning the tables at these voting sites are, for the most part, well-intentioned and civic-minded folks who simply don’t have a clue about the nuances of election law. Expecting hundreds of volunteers to consistently apply provisional ballot rules is a fool’s errand.

  8. 8.

    Fax Paladin

    April 17, 2012 at 2:55 pm

    The poll workers aren’t acting maliciously.

    The Republican elected or appointed officials who argue that provisional votes from Democratic-leaning precincts shouldn’t ever count, that’s another matter.

  9. 9.

    Bubblegum Tate

    April 17, 2012 at 2:56 pm

    Clearly, this is just evidence of widespread vote fraud by Democrats. Uh, or something.

  10. 10.

    Enlightened Liberal

    April 17, 2012 at 2:57 pm

    In practice, provisional ballots are given so that the voter will be processed and moves on. Provisional ballots are 2nd class ballots and are rarely counted.

    I spent 4 hours in 2004 going to county court and getting a court order to vote on the machine rather than cast a provisional ballot. Not all will or can do it, but I have no doubt my vote counted.

    Conservatives never win when people vote, so every election is more hurdles to prevent people (especially those pesky minorities) from exercising their franchise. 2004 it was HAVA, 2010-2012 it is voter ID laws. 2000 it was the felons list. 1864-1964 it was poll taxes.

  11. 11.

    JoyfulA

    April 17, 2012 at 3:00 pm

    And then there are those trustworty machines used to count the ballots.

  12. 12.

    Kay

    April 17, 2012 at 3:03 pm

    @Fax Paladin:

    There’s a backstory, like all things conservative and legal, they have a greater goal here.

    Conservatives want to cement the principle into place that voter intent doesn’t matter. At all. Get it exactly right, or you’re thrown out. Poll worker gives you wrong instructions? Tough luck. Votes (and voters) are treated differently as a result? Tough luck.

    That’s why they took it all the way to the state supreme court, (where they won) and that’s why Democrats and allies took it to federal court (where they won).

  13. 13.

    ThatLeftTurnInABQ

    April 17, 2012 at 3:05 pm

    Great post as usual, kay. Also, I heart the phrase “democracy enthusiasts”.
    __
    I have a question: if this much chaos is caused by the reshuffling of precints, why are the precints being reshuffled so frequently? I can understand the need to do say once every 10 years in response to revised census data, but why would it happen more any often than that? And if the Congressional district in question hasn’t changed, why would it happen at all? Is this just another more subtle form of ratfucking in operation? Has anybody studied the phenomenon to see if precints with certain demographics are more frequently redrawn than others?

  14. 14.

    Kristin

    April 17, 2012 at 3:09 pm

    In a recent election, the volunteer didn’t see my name on her list and immediately handed me a provisional ballot with no discussion or explanation. I argued with her and it turned out she had more than one list and hadn’t looked at it the list that had my name on it. I got my actual ballot. The guy in front of me had the same issue, but he just took his provisional ballot, probably not knowing any better.

    There had been a lot of publicity about provisional ballots leading up to that election. It seemed that the volunteer was excited to hand those out. Not in a malicious way but in a “wow, I have one already!” way.

  15. 15.

    Catsy

    April 17, 2012 at 3:09 pm

    Republicans have to count the votes

    No, see, a real win for democracy enthusiasts would be: “Republicans aren’t allowed anywhere near vote-counting activities”

    But this is a positive step in the right direction.

  16. 16.

    MikeJ

    April 17, 2012 at 3:14 pm

    Frankly in this age of information technology the idea of the “right” precinct is pretty stupid. When you check in to vote they should be able to 1)put the correct ballot for you on the machine and 2)check you off the list as having voted. People who work in downtown areas and live in the burbs could vote downtown.

  17. 17.

    Catsy

    April 17, 2012 at 3:15 pm

    Also: we need compulsory voting in the United States, at the very least for the national offices. With a Federal Holiday and automatic voter registration in a federal database.

  18. 18.

    Steve

    April 17, 2012 at 3:32 pm

    @Kay:

    That’s why they took it all the way to the state supreme court, (where they won) and that’s why Democrats and allies took it to federal court (where they won).

    Yes, well. The Sixth Circuit panel had 2 Clinton appointees and 1 Bush appointee, and the Bush appointee voted in favor of granting the Republicans their stay, so that’s a close thing. Considering that the full-time judges on the Sixth Circuit consist of 10 Republican appointees and only 6 Democrats, it seems like we were the beneficiaries of a fairly lucky panel draw here. The federal courts are hardly the bastion of protection for voting rights that they once were.

  19. 19.

    aimai

    April 17, 2012 at 3:36 pm

    Thanks to all your hard work here, Kay, when I was clerking for the last presidential election I was the only one to raise my hand during the training session to point out how upset voters were to be offered a provisional ballot-I wanted more guidance and more training for all of us in how to avoid having to offer someone such a ballot. The supervisors/commissioners were just profoundly illinformed about the problems with provisional ballots and also with the politicization of provisional ballots. This was in a strongly democratic town where the commissioners, at least, want every vote to count. But it was like talking to a wall.

    I think if you have only ever been a voter you can’t imagine how random and unprofessional and just sheerly chaotic voting regulations and practices are around the country. For instance we have no way of helping a voter in the wrong precinct figure out where to go–we don’t have the time or a dedicated person tohandle people who are in the wrong place. But that’s the most common reason that people need provisional ballots–because they moved recently, the precinct moved, or for some other reason. And, as you’ve said, the rules themselves keep changing so that the poorly trained clerks and inspectors don’t really have a chance.

    aimai

  20. 20.

    MattR

    April 17, 2012 at 3:38 pm

    @Steve: Thanks for reminding me that I have to go vote in the school board election next time I take the dog out for a walk. There is only one person on the ballot for the seat, but I want to make sure I vote for the budget itself.

  21. 21.

    ant

    April 17, 2012 at 3:43 pm

    any kinda vote ratfucking happen in the Oregon vote by mail system?

    spose got people stealing mail there….. but that’s some risky shit to be pulling right there….

    seems to me like that would work pretty good.

    this is a great story Kay.

  22. 22.

    MikeJ

    April 17, 2012 at 3:48 pm

    @ant:

    Oregon reports of the all-mail 1996 Senate special election, that “not a single formal complaint [of fraud] surfaced, even though 1.8 million ballots were cast in this hard-fought, highly partisan contest.” Further, Secretary of State Phil Keisling noted that “During the 15 years that Oregon has held mail elections, only one case of fraud has been prosecuted.”

    http://archive.fairvote.org/turnout/mail.htm

  23. 23.

    AA+ Bonds

    April 17, 2012 at 4:02 pm

    Hunter and the Democrats have argued it is unfair to exclude the ballots because evidence suggests poll-workers mistakenly directed voters to the wrong tables. Williams and the Republicans say the ballots were miscast and Ohio law does not allow them to be counted.

    LOL, that’s not vote suppression or anything

  24. 24.

    ThatLeftTurnInABQ

    April 17, 2012 at 4:05 pm

    @MikeJ:

    During the 15 years that Oregon has held mail elections, only one case of fraud has been prosecuted

    __
    No wonder the GOP wants to de-fund the US Post Office.

  25. 25.

    ThatLeftTurnInABQ

    April 17, 2012 at 4:08 pm

    @AA+ Bonds:

    LOL, that’s not vote suppression or anything

    __
    It is practicing “safe voting” GOP style, aka Abstinence-based Democracy. Think of it as holding an aspirin between your knees until that naughty voting feeling goes away.

  26. 26.

    Omnes Omnibus

    April 17, 2012 at 4:08 pm

    FWIW I have always thought Judge Dlott was a very good judge. She and Marbley were my two favorites in the S. D. Ohio.

  27. 27.

    nellcote

    April 17, 2012 at 4:16 pm

    “Pressured by watchdog groups, civil rights organizations and a growing national movement for accountable lawmaking, the American Legislative Exchange Council announced Tuesday that it was disbanding the task force that has been responsible for advancing controversial Voter ID and “Stand Your Ground” laws.
    …

    The decision to disband the task force appears to get ALEC out of the business of promoting Voter ID and “Stand Your Ground” laws. That’s a dramatic turn of events, with significant implications for state-based struggles over voting rights an elections, as well as criminal justice policy. But it does not mean that ALEC will stop promoting one-size-fits-all “model legislation” at the state level.

    Indeed, the disbanding of the “Public Safety and Elections” task force looks in every sense to be a desperate attempt to slow an exodus of high-profile corporations from the group’s membership roll.”

    http://www.thenation.com/blog/167425/alec-disbands-task-force-responsible-voter-id-stand-your-ground-laws

  28. 28.

    cintibud

    April 17, 2012 at 4:27 pm

    I’m a voter in Hamilton County, Ohio in a predominately Democratic area. I have been voting at the same place for 20 years. I went to vote last November (not the election mentioned here) went to the table to vote and was alarmed when they didn’t find my name in the book. However, for the first time in 20 years, they had switched the tables and my correct precinct was now on the other side of the room.

    Don’t know why they did that, but it threw me off for a minute. Fortunately they caught the mistake and I voted but if there had been a big crowd I might have been thrown a provisional ballot instead.

  29. 29.

    RalfW

    April 17, 2012 at 4:45 pm

    Photo ID is turning out to be a Republican’s wet dream: It not only disenfranchises people flat-out, it also causes huge new uncertainties and makes people think the whole process is fruncked up. So they’ll stay home.

    I really didn’t think Democracy would end by slow asphyxiation. But the GOP is attempting murder of the system of government they allege to cherish.

  30. 30.

    rikyrah

    April 17, 2012 at 5:07 pm

    provisionals are a joke.

    I tell you to tell everyone you know..

    DON’T TAKE A PROVISIONAL BALLOT

  31. 31.

    a hip hop artist from Idaho (fka Bella Q)

    April 17, 2012 at 6:19 pm

    @Omnes Omnibus: I agree, and she was an actual trial lawyer (AUSA then civil trial work) prior to taking the bench, so she gets the utility of the rulkes, and the reality of what’s a reasonable expectation. I will tell you however, that she announced she would be channeling her hero, Carl Rubin. And also advised (at an Inn of Court, IIRC) that she told counsel in one of her first inherited cases that had been through many continuances before she took the bench, when yet another one was requested:

    Counselors, this case is not.going.to.be.continued.again, for any reason. If counsel for defendant A dies, I will send flowers, and we will recess for the afternoon of the funeral, but the case will not be continued.

    Since that was exactly the kind of thing Judge Rubin would have announced in the same situation, no one doubted that she’d said just that. Clearly she did the right thing in this case.

    In case anyone wonders, John Williams will be a juvenile judge regardless of the outcome. He’s been appointed to an open seat – conveniently retired from once the election totals went into litigation – and will remain in that seat if Hunter is declared the winner from 2010. If he wins, he will take the elected seat so that King John the Fox News Personality can appoint a party hack another attorney to the seat Williams holds now. Never a dull in Hamilton County.

    Thanks Kay for keeping this on the front page. It’s really important. I voted in that race, in a heavily democratic district, so it’s kind of personal for me. Even though I was in the right precinct, as I know the folks that work there – same folks work that precinct table every year.

  32. 32.

    Phoenician in a time of Romans

    April 17, 2012 at 6:23 pm

    It’s not as if arranging elections is rocket science – us here in other countries (with similiar sizes to your individual States) manage to do it quite nicely.

    The difference is we treat it as a matter of good governance and not like a duel between partisan political parties. There’s a bureaucracy and process and procedure, appropriate technology, audits and checks. And we use a big obvious tick on a simple form which gets counted manually.

  33. 33.

    Steve

    April 17, 2012 at 6:49 pm

    @Phoenician in a time of Romans: One thing people seem to have in other countries that we really don’t have here is a central population registrar.

  34. 34.

    DarcyPennell

    April 17, 2012 at 9:36 pm

    I wish that everyone who is concerned about voting procedures would apply to be a poll worker. You might find, as I did, that your polling location is staffed with people who care deeply about the process and work hard all day long to get it right for each voter, and be proud to work alongside them. Or if that’s not how it is in your polling location, then you’ll be there and have the chance to do a better job for the voters, and maybe inspire your fellow poll workers to do better themselves. Either way, you’d be doing good.

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