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.