In wrong precinct? Vote may not count
Blackwell changes provisional-ballot rules once again
Tuesday, October 19, 2004
Mark Niquette
THE COLUMBUS DISPATCH
  

In response to a judge’s order, Ohio Secretary of State J. Kenneth Blackwell yesterday proposed new guidelines for provisional ballots, saying no one should be denied the chance to vote — even though that vote might not be counted.

U.S. District Judge James G. Carr last week disqualified Blackwell’s Sept. 16 instructions to county elections officials, which said provisional ballots should not be issued unless voters were in their correct precincts.

The judge said those instructions were in violation of the federal Help America Vote Act. He told Blackwell to file a proposed new directive that would comply with HAVA by 4 p.m. yesterday.

Blackwell is appealing Carr’s ruling to the 6 th U.S. Circuit Court of Appeals but did file a proposed directive that says poll workers must make every effort to get voters to their correct precincts.

But the proposed directive says no one should be turned away without being given the chance to cast a vote — and that voters also must sign an affidavit saying they understand that if they are voting in the wrong precinct, their ballot might not be counted.

Democrats, who sued Blackwell on grounds that thousands would lose the right to vote — especially the poor and minorities — called Blackwell’s response yesterday "astonishing."

"It’s not a good-faith effort to comply with Judge Carr’s order," said lawyer Rory P. Callahan, representing the Ohio Democratic Party.

Blackwell said his directive complies with federal law, and he is confident he will win on appeal, spokesman Carlo LoParo said.

The Florida Supreme Court ruled unanimously yesterday in a lawsuit about similar issues that people who cast a provisional ballot at the wrong precinct are not entitled to have their votes counted — and that the state can determine voting rules, according to news reports.

Provisional ballots are cast by voters who have moved but have not d their registrations, or by those who think they are registered but do not appear on the rolls. The ballots are held for 10 days while workers check the voters’ eligibility.

Blackwell has argued Ohio law says it’s illegal to cast a ballot outside a voter’s home precinct, so provisional ballots should not be issued or counted if a voter is in the wrong one.

HAVA requires provisional ballots to be issued in a voter’s jurisdiction, which Carr ruled to be a voter’s home county. Blackwell argues jurisdiction in Ohio means precinct and has vowed to appeal to the U.S. Supreme Court if necessary.

Carr had suggested that Blackwell file two proposed directives: one for a scenario in which Blackwell loses the appeal, and one if he were to win, so that either could be issued quickly.

The judge issued an order for Blackwell to file a second proposed directive by Wednesday, but LoParo said that order was issued before Blackwell filed his new guidelines and might be subject to further review.

Carr also has ordered Blackwell to clarify his directive requiring certain first-time voters to show proof of identity on Election Day, which was the subject of a separate lawsuit by the League of Women Voters of Ohio and other groups.

The law says voters who registered by mail and didn’t include their driver’s license number or the last four digits of their Social Security number must show some identification at the polls.

The idea is to prevent fraud, but the law allows people who don’t have identification to cast a provisional ballot.

Blackwell is requiring voters who cast a provisional ballot under those circumstances to return with identification before polls close to have their ballot counted. Critics say that’s a violation of HAVA.

Carr wanted Blackwell to clarify whether voters could verbally provide the last four digits of their Social Security numbers without other proof of identity.

The league said that would help but is still too restrictive because some people might not know their number — and based on HAVA, still have the right to cast a provisional ballot that would be counted if eligibility is confirmed.

"We’re working with each other and the court," said lawyer Donald McTigue, representing those suing Blackwell.