Ohio has finally begun to tally provisional ballots. This was supposed to be the moment we were all waiting for—back when the presidential election was going to be airtight and everyone was worried about elections administration in the ultimate battleground. Instead, the Obama campaign won a decisive victory, so few kept following the counting in Ohio. But even without an audience, the state's court battles continued well after Election Day. While the presidential race may not hang in the balance, the outcomes of two legislative races will determine a whether Republican lawmakers have a supermajority—which would allow them to easily pass a conservative agenda, including more attempts at voter suppression.
“I think Ohio dodged a proverbial bullet,” said Ned Foley, the head of Ohio State’s Moritz Law Center. Still, Foley is quick to point out, “The focus has gone away but that doesn’t mean the vulnerabilities don’t exist.”
The most recent fights have been over how to count provisional ballots. By law, in Ohio, provisional ballots cannot be counted until ten days after the election—in this case, November 16—leaving time for lawsuits even after all votes have been cast. Already, courts ruled that the state would have to count provisional ballots cast by voters who were at the right polling place but received a ballot for the wrong precinct (this is known as the "right church, wrong pew" rule). Provisional ballots are meant to be a safety net for voters when there's a problem at the polls. For instance, if a voter's name doesn't show up in the voter rolls, he or she can cast a provisional ballot, and the poll workers can go back later to verify whether he or she is registered. But Ohio also requires registered voters to cast a provisional ballot if they've simply changed addresses without updating their voter registration. That means the state winds up with significantly more provisional ballots than most states—more than 200,000 this year. In Cuyahoga County, the Democratic stronghold where Cleveland is located, nearly 5 percent of all votes cast were cast provisionally—significantly more than the 4.2 percent in 2008. Had the presidential race been closer, it's not hard to guess that the situation would likely have turned into a bureaucratic and legal nightmare. Ohio's voting problems have national significance. Even if the outcome of a presidential race isn't at stake, the basic question of ensuring all legitimate votes get counted and that voters can easily cast their ballot remains. And if a presidential race is at stake in Ohio—as 2004 was and as a future one may be—the fighting and lawsuits are sure to get even more bitter as the rules get banged out at the last minute.
The most recent legal battle was over the outer envelopes that voters must put their provisional ballots in. These envelopes provide the information poll workers use to verify a voter's legitimacy, and require that voters identify themselves either by using the last four digits of their Social Security number or by showing another form of identification. In the past, poll workers have been responsible for correctly filling out this portion. But the state's controversial Republican secretary of state, Jon Husted, ruled only four days before the election that those voting provisionally would be responsible for filling out the outer envelope themselves. If a voter didn't fill out the form properly, her vote gets tossed out, even if she's properly registered. While this would likely only affect a fraction of the provisional ballots cast, with so many registered voters casting provisional ballots, the idea that a paperwork mistake could lead to disenfranchisement is scary.
In the end, the Sixth Circuit Court of Appeals allowed Husted's directive to stand. But not before, in an earlier decision on the case, U.S. District Judge Algenon Marbley gave an overwhelmingly critical assessment of the situation, arguing "The surreptitious manner in which the secretary went about implementing this last-minute change to the election rules casts serious doubt on his protestations of good faith."
For much of the fall, the Obama campaign and voting rights activists fought back against decisions from the GOP-dominated state legislature to end early voting the Friday before Election Day—halting it on the last weekend before Election Day. Black churches in particular often take advantage of the last Sunday to encourage congregants to cast their ballots. Meanwhile, the situation grew more contentious when Secretary of State Husted separately set uniform hours for all polling places—and offered no weekend hours and fewer evening hours than urban counties had offered last time around. Even as early voting began, no one knew whether polling places would be open on the three days before Election Day. Ultimately they were, through court order.
While plenty of Republicans may see voting restrictions as an electoral advantage, the chaos of last-minute decisions and innumerable lawsuits aren't in anyone's interest. It seems obvious that Ohio's lawmakers would be smart to use the off-year to make some reasonable changes. Already op-eds in the Cincinatti Enquirer and the Cleveland Plain Dealer have called on the legislature to make easy fixes—like setting a deadline for directives from the secretary of state, so that polling places aren't taken by surprise. Lawmakers could also decide to differentiate those provisional ballots cast simply because a voter moved from those cast because there's a question about a voter's legitimacy. That way, the former type could be processed quickly, while poll workers could take time to investigate the latter.
But with partisan elected officials running campaigns, there's almost an assumption that procedural decisions are made to benefit one side or another. As the Plain Dealer notes, the best thing the Ohio lawmakers could do would be to make their elections administration nonpartisan. Wisconsin provides a great model, relying on retired judges to oversee elections.
Due to the GOP's dominance in state politics, however, that's not a change we're likely to see any time soon. Republicans may even have a legislative supermajority this time around, and they could decide to make even more partisan decisions when it comes to elections. But they won't know until all the provisional ballots from this election are counted.