Ohio’s law disqualifying some provisional election ballots and Pennsylvania’s voter identification statute are the subject of court action this week that may determine their fate just five weeks before the presidential election.
The 2006 Ohio measure is one of two voter regulations from that state being litigated before the U.S. Court of Appeals in Cincinnati. In Pennsylvania, a judge has until tomorrow to file an opinion on that state’s ID law and its viability.
Similar laws have been enacted by Republican-dominated legislatures across the country — laws aimed in part at fighting voter fraud, proponents contend. Opponents argue they are an effort to limit votes for Democratic candidates. Over the past few months, the majority of challenges have been resolved against the laws, most recently a Sept. 27 decision in Wisconsin effectively barring a photo ID requirement at polls there.
There are at least 15 cases pending nationwide over election law limits on issues such as early voting, registration and identification in the run up to the Nov. 6 vote. Of those, about half are in states where both Democrat President Barack Obama and former Massachusetts Governor Mitt Romney, a Republican, contend they can win.
The federal appeals court today is to hear arguments in Ohio’s challenge of a lower court ruling on the counting of provisional ballots. U.S. District Judge Algenon Marbley in Columbus held Aug. 27 that Ohio’s provisional ballots can’t be thrown out if they’re filed in the wrong precinct because of poll-worker error, as the state seeks to do. In 2008, Ohio rejected 14,355 so-called wrong-precinct ballots, according to the judge’s decision.
In Ohio, a so-called swing state, both Obama and Romney see a path to victory.
In the ballot lawsuit, the Service Employees International Union, Local 1, and other plaintiffs sued the Ohio Secretary of State, asking a court to issue a statewide injunction ordering that provisional ballots cast in the wrong precinct be counted.
The union argued that rejection of such ballots violates the rights of voters, particularly in locations that have multiple precincts -- which are generally in urban areas.
In these locations, casting a ballot in the right precinct is dependent on the poll worker, according to the court filings. Plaintiffs said that accepting these ballots would prevent the disqualification of thousands of votes.
Marbley, appointed by former President Bill Clinton, a Democrat, ordered such ballot disqualification stopped. The judge said that, as a matter of law, if a voter casts a ballot in the wrong precinct it’s the fault of a poll worker, unless the voter deliberately refused to go to the right polling place.
To disqualify a voter who used the wrong precinct, the state would have to provide a sworn statement by a poll worker that this happened. The state appealed the decision.
The three judges scheduled to hear arguments today are all Republican appointees. Julia Smith Gibbons and Deborah Cook were both chosen by former President George W. Bush, and Lee Rosenthal, a U.S. district judge from Houston federal court, was appointed by former President George H.W. Bush.
Reversing Marbley’s decision would “indisputably result in the rejection of thousands of votes by lawfully registered voters that would otherwise have been protected from disqualifying poll-worker error,” lawyers for the union and a homeless advocacy group said in a filing with the appeals court.
In 2011 alone, more than 1,500 ballots were counted that would have been disqualified, they said.
“At least that number would be rejected in the upcoming presidential election, which will have far higher voter turnout,” the plaintiffs said in the Sept. 4 filing.
“The sooner these matters can be resolved the better,” Matt McClellan, spokesman for Ohio Secretary of State Jon Husted, a Republican, said in a telephone interview last week. “We hope they will be resolved well in advance of the election.”
Also pending before the Cincinnati appeals court is a lawsuit dealing with Ohio’s early voting restrictions. Another federal judge, ruling Aug. 31 on a complaint filed by Obama’s campaign, ordered the restoration of three days of early voting for all citizens that the Republican-controlled legislature had limited only to members of the armed services and few others.
In that case, Obama for America claimed as support for its case that, in the three days before the 2008 election, 93,000 Ohio voters cast their ballots.
The judge ruled that it was unconstitutional to take away three days of early voting for most citizens in the state while allowing Ohioans serving in the military to have them.
Ohio Attorney General Mike DeWine, a Republican, appealed, arguing that Ohio has previously allowed such a distinction between military voters and civilian voters.
The U.S. Court of Appeals agreed to expedite Ohio’s appeal, though it has yet to schedule an argument. Early voting in Ohio begins tomorrow.
In Pennsylvania, the state supreme court on Sept. 18 set aside a lower-court ruling upholding a voter ID law and asked the judge to revisit his decision. The judge was told to assess whether all citizens will be able to obtain allowable forms of ID.
The state high court, in its 4-2 decision, asked Commonwealth Court Judge Robert Simpson, a Republican, to submit a so-called supplemental opinion by tomorrow. He held hearings on the matter last week.
Two Democratic justices dissented from the majority’s ruling, saying they would have blocked the law outright. They assailed their colleagues for sending the case back to Simpson less than two months before the election.
“The eyes of the nation are upon us,” Justice Debra McCloskey Todd wrote, “and this court has chosen to punt rather than to act.”
A state analysis found Pennsylvania’s photo ID requirement might exclude as many as 759,000 eligible voters, or 9 percent of its electorate, from voting in the presidential election. In 2008, Obama won the state by 620,478 votes.
The state has issued about 10,000 ID cards since March, or 10 percent of the lowest estimate of registered voters without ID, according to an American Civil Liberties Union chapter there.
Simpson said he’s considering blocking only part of the law affecting the counting of provisional ballots for those without acceptable identification. Under the statute, a person may vote without photo ID by casting a provisional ballot, and that ballot would only be counted if the voter presents a copy of acceptable ID within six days of the election.
Tinkering with the rules governing provisional ballots would cause “severe administrative burdens” for election officials, the ACLU said in a Sept. 28 filing. To protect the integrity of the election Simpson must bar enforcement of the photo ID requirement, the ACLU said.
State officials argued that a “blanket injunction” would lead to “chaos.” An order barring enforcement of provisional ballot rules until the November election was certified would suffice, lawyers for the state said in papers filed Sept. 28.
For this election only, a provisional ballot should be counted as long as a voter produces photo ID by Nov. 13 or a written affirmation confirming their identity and their lack of acceptable photo ID, lawyers for the state said in the filing.
The Ohio provisional ballot case is Northeast Ohio Coalition for the Homeless v. Husted, 12-03916, U.S. Court of Appeals for the Sixth Circuit (Cincinnati). The Pennsylvania case is Applewhite v. Commonwealth of Pennsylvania, 71 MAP 2012, Supreme Court of Pennsylvania (Harrisburg).
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