The marauding Democratic legal team received an assist on Thursday when SEIU v. Husted was resolved (for now). The SEIU had argued that voters who cast their ballots in the wrong precinct (but in the right location in a multi-precinct site) should have their votes counted unless election officials could prove that they instructed the voter to go to the correct polling location and the voter refused and demanded a provisional ballot. The 6th Circuit Court of Appeals ruled in favor of the SEIU, saying those votes must be counted. BOE officials will be required to “modify” the ballots after the fact if the voters cast ballots for down-ticket races for which they were not entitled to vote. The other part of the lawsuit said that the state erred in not counting provisional ballots that contained incomplete identifier information, namely, the voter’s signature. The court sided with the state, finding that provisional ballots must at least have signatures (even if they are not required to be cast in the proper precinct).
Husted’s press release applauded the signature requirement but made no mention of the wrong precinct issue, indicating that he will not (immediately) pursue the case and will leave the 14,000 votes (the number thrown out in the last election) on the table. However, if the election were to come down to 14,000 votes, it’s reasonable to assume those votes would be contested.
In addition to the numerous challenges by the Democratic legal eagles, last Wednesday, Cleveland’s Channel 5 News reported that 45,000 absentee ballots were improperly printed and mailed to voters in Cuyahoga County. The boxes that require the name, address, and signature have text printed in a dark font, requiring voters to write on top of the printed text in order to fill out the ballot. Not only is this causing confusion for voters, it raises the possibility of error at the BOE and increases the chance that voter fraud will go undetected.
Provisional ballots already present an added degree of difficulty for election officials. They are all hand-processed and officials must verify signatures and cross-check addresses to determine if the voters are eligible to vote and therefore decide if the vote should be counted. Although the Cuyahoga County BOE is making assurances that they will not have a problem reading the identifying information and signatures, once again, in a close election, those ballots will almost certainly be heavily scrutinized for irregularities. The Florida hanging chad inspector will likely be deployed to Ohio to peer at thousands of illegible provisional ballots.
We can be certain of one thing: if the election is close, the real winners will be the lawyers. There are several potential avenues for legal challenges based on contested ballots, in addition to the usual Democratic claims of disenfranchisement. Although the threshold is high for the automatic recount trigger, any individual candidate may request a recount. And so, even as you read this, the state is lawyering up and attorneys are booking their flights to Ohio and reserving rooms for the month of November. Don’t forget your snow boots and parkas. November isn’t our best month.
UPDATE Tuesday, October 16, 1:00 pm EST: The U.S. Supreme Court sided with the Obama campaign on Tuesday, turning down Ohio’s petition in Obama for America v. Husted and clearing the way for county boards of elections to set their own hours for early voting. Without comment or dissent, the court refused to stay the lower court’s ruling. In essence, the decision affirmed that courts can overrule state election laws for the sake of voter convenience. The decision also agreed that non-deployed members of the military should not be treated with special consideration under UOCAVA. The Obama campaign had argued that their circumstances are not more difficult than a firefighter or a civilian citizen who may have an unexpected illness on election day. The U.S. Supreme Court agreed, which will likely open the door to other attacks on voting rights for members of the military.
UPDATE Wednesday: In response to the decision, Secretary of State Jon Husted ordered all county boards of elections to open for early voting the Saturday, Sunday, and Monday before Election Day. For most Ohio counties, this will be the first time they have offered extended weekend voting hours prior to Election Day. In a press release, Husted said, “Despite the Court’s decision today to deny our request for a stay, I firmly believe Ohio and its elected legislature should set the rules with respect to elections in Ohio, and not the federal court system.”