Legal battle over provisional ballots moves to appeals court

ANDREW WELSH-HUGGINS

Associated Press

 

COLUMBUS, Ohio - The legal battle over how to handle voters who show up at the wrong polling place on Election Day moved to a federal appeals court Thursday.

Secretary of State Kenneth Blackwell was expected to file court papers with the 6th U.S. Circuit Court of Appeals in Cincinnati in favor of his argument that voters be prohibited from casting ballots anywhere but the precinct where they're registered.

A federal judge on Wednesday rejected Blackwell's latest order on dealing with so-called provisional ballots, then offered a compromise that Blackwell agreed to.

Under the compromise, U.S. District Judge James Carr of Toledo and Blackwell agreed to two versions of an order to county boards of elections on how to handle provisional ballots.

The first version would apply if Carr's decision is upheld by the 6th U.S. Circuit Court of Appeals; the second if the appeals court sides with Blackwell.

For the first time, the number of provisional ballots cast on Election Day will be known that night. The ballots won't be counted for 10 days, but the number of possible outstanding votes could be crucial if the presidential election is close.

The federal appeals court has directed both sides to submit written arguments. A three-judge panel assigned to the case would hear oral arguments Tuesday if they decide information beyond the written filings is needed to rule.

In his ruling, Carr criticized Blackwell for not taking the suggestions he outlined in a ruling last week.

"Blackwell chose - for reasons he has not undertaken to explain thus far - to disregard those suggestions," Carr wrote in his decision. "His doing so makes it necessary for this Court to do the job that he should have done."

According to the first proposed order, if Blackwell wins on appeal, voters will be informed their entire ballot could be discounted if they vote in the wrong place.

If Blackwell loses, voters will be informed that only their ballots for federal races - including the president - will be counted if they vote in the wrong place, the other order said.

Democrats praised Carr's ruling. They said they were reviewing the alternatives "to make sure they comply with Judge Carr's voter-friendly order," said Myron Marlin, an Ohio Democratic Party spokesman.

Democrats sued after Blackwell, a Republican, issued his first order last month saying voters would not be allowed to cast a vote unless they were in their correct precinct.

At issue is what the 2002 federal Help America Vote Act says about allowing eligible voters to cast ballots if their name does not appear on a list of registered voters.

In 2000, about 121,000 provisional ballots were cast by Ohio voters who had moved and didn't change their voter registration information or whose names didn't appear on the lists at their regular precinct. Of those, about 106,000 were counted.

Blackwell says allowing voters to cast a ballot wherever they show up, even if they're not registered to vote there, is a recipe for Election Day chaos.

Democrats say the order could restrict the number of poor and minority voters, who move more often.

In a related issue, the head of the commission created to help states enact the 2002 federal voting law has called on Blackwell to stop saying the commission agrees with his position.

Blackwell contends that the U.S. Election Assistance Commission, in an Oct. 12 resolution, backs his contention that ballots cast at the wrong place can't be counted.

Blackwell is misapplying the commission's position, DeForest Soaries, the commission's chairman, said Wednesday. The commission asked Blackwell in a letter Tuesday to refrain from characterizing the commission's resolution "as an endorsement of your actions."

LoParo said Blackwell was perplexed by Soaries' letter.

"If the commission does not want the state of Ohio or other states to cite its resolution or the comments of its chairman, then the commission should stop issuing resolution and the chairman should stop speaking to the media," he said.

Soaries responded that Blackwell was the only secretary of state in the country to misinterpret the resolution.

"We've sent on behalf of the federal government $90 million to Ohio," Soaries said Wednesday. "Since we have sent $90 million to Ohio, Ken Blackwell and his staff have 90 million reasons to care about our opinion."