Ohio Federal Court Issues Injunction to Prevent Unconstitutional Rejection of Thousands of Provisional Ballots

Contacts: Danielle Leonard, Altshuler Berzon LLP, (415) 421-7151; dleonard@altber.com
              Wayne Ranick (412) 562-2444; wranick@usw.org

COLUMBUS, Ohio, Aug. 28, 2012 — Yesterday, a federal court in Columbus, Ohio, issued an injunction requiring the State of Ohio to count ballots cast by registered voters that Ohio law would otherwise require be thrown out for reasons attributable to poll worker error. The federal court held that disqualification of ballots for reasons attributable to poll-worker error denies Ohio voters their fundamental right to have their votes counted, in violation of the federal Constitution. As a result, thousands of ballots, which otherwise would have been rejected because of mistakes made by poll workers, are likely to be counted in the upcoming November 2012 general election.

“This is a tremendous victory for democracy,” said David McCall, District 1 (Ohio) Director of the United Steelworkers (USW). “No right is more important to our system of government than the right to vote,” said Tom Balanoff of Service Employees International Union (SEIU) Local 1. Becky Williams of SEIU District 1199, also in Ohio, added: “Today’s decision makes clear that the Constitution does not tolerate the arbitrary disenfranchisement of voters.”

The lawsuit, SEIU Local One et. al v. Husted, was initiated in June 2012 by a coalition of labor organizations on behalf of the tens of thousands of Ohio voters they represent. The coalition involved in this action includes the Service Employees International Union (SEIU) Local 1; United Steelworkers (USW) International Union; United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) Locals 1005 and 863; United Food and Commercial Workers Union (UFCW) Locals 75 and 880; Local 1059, International Chemical Workers Union, a Council of the UFCW; and the Ohio Organizing Collaborative. The plaintiffs contended that Ohio’s provisional ballot law violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution because Ohio has no legitimate reason to reject ballots cast by lawful voters for technicalities that are the result of poll-worker mistakes.

Yesterday, the court agreed: “Once fashioned . . . the Constitution demands a safety net without holes — or, to be more precise, without any holes which cannot be justified.” And, Ohio’s attempted justification of its arbitrary provisional-ballot counting rule “falls short of what is required to justify its inevitable disenfranchisement of thousands of qualified voters in the November 2012 election.”

Ohio has one of the most complicated provisional ballot laws in the country. As a result, in 2008, more than 200,000 voters were required to cast provisional ballots in Ohio. That number is second only to provisional ballots cast in California, which has a much larger voting population. (Source: U.S. Election Assistance Commission data).

Under its strict ballot-counting laws, Ohio rejects tens of thousands of provisional ballots cast by lawfully registered voters, including 14,000 in the 2008 election for being cast in the wrong precinct (Source: Ohio Secretary of State election results data). Ohio has further complicated matters by consolidating voting precincts into multi-precinct polling locations — such that voters who vote in the right building but are given the wrong precinct ballot by a poll worker would have their entire ballot rejected for being cast “in the wrong precinct.”

In seeking relief in federal court, the plaintiffs provided extensive statewide evidence demonstrating that the complicated Ohio voting system results in widespread poll-worker error. Poll workers unintentionally give voters the wrong provisional ballots or fail to provide instructions on how and where to cast such a ballot. Minutes from board meetings across the State of Ohio reflect the boards’ frustration with their inability under Ohio law to count ballots cast incorrectly through no fault of the voters. Today’s court decision alleviates boards’ frustrations, at least for now. Secretary of State Husted is expected to appeal the ruling.

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