For voting rights activists, the news coming out of Ohio hasn't been promising—the secretary of state has limited early voting hours and a state law stopped all voting the three days before Election Day. Both decisions have a disproportionate impact on poor and nonwhite voters, who vote in particularly heavy numbers during the early period.
But Monday brought some good news for vote defenders in the Buckeye State. In 2008, around 14,000 voters had their ballots thrown out because they cast provisional ballots in the wrong precinct. Often, it was a poll worker who had made the error, but it was the voter who was punished. But thanks to an injunction granted by a U.S. district judge Monday, that measure will not be in effect in the 2012 elections.
The Service Employees International Union brought the suit, represented by lawyers from the Advancement Project, a voting rights group that’s been involved in several of the voter ID challenges around the country. The plaintiffs argued the provision violated the equal protections guarantee and infringed on the right to vote.
Provisional ballots—paper ballots for voters unsure about their eligibility to vote—have gained prominence as voting restrictions leave fewer voters able to cast a standard ballot. The ballot does not get counted until the voter is shown to be eligible. Ohio has among the largest numbers of provisional ballots cast in the country; in 2008, more than 200,000 voters could not cast a standard vote. Around 14,000 of those ballots were rejected because they'd been cast in the wrong precinct. While 14,000 isn't likely enough to swing the outcome of a presidential race, state races can be decided by a margin in that range.
It’s easy to cast a ballot in the wrong precinct if you live in an urban county. There’s been a dramatic increase in the number of multi-precinct polling places—where one church or school serves as the polling place for several precincts. In such a case, it’s almost never the voter’s fault if they wind up voting in the wrong precinct. Poll workers direct voters to stand in one line or another and, once arriving at the front, a poll worker determines whether the voter is in the right place. The poll worker is supposed to direct them to the right place, however, there are also problems, like a printing error, that can lead to a voter’s name not being on the rolls. If the poll workers hand a voter a provisional ballot for the wrong precinct, the voter does what they're told.
“There’s no way they’d be casting a wrong precinct ballot unless the poll worker let it happen,” says Denise Lieberman, an attorney with the Advancement Project. She notes that poll workers are rarely trained in this area; this issue is not even in the state poll worker manuals. “It’s simply not fair to throw somebody’s vote due to a technical mistake that was not theirs,” says Wendy Weiser, the head of the Democracy Project at the Brennan Center. (The Brennan Center is not part of the lawsuit.)
Lieberman calls it a case of “right church, wrong pew.” In Cuyahoga County, where Cleveland is located, 94 percent of precincts are in multi-precinct polling locations. In Butler County it’s 95 percent and in Montgomery County, it’s 88 percent. That means urban voters stand a much higher risk of losing their vote to poll worker error.
The Ohio Secretary of State’s office argued the issue did not constitute a severe burden on the right to vote because there aren't many not many affected voters in the aggregate. However, U.S. District Judge Algenon Marbley ruled that in an equal protection challenge, the court must examine the “law’s particular burden on the individuals whose voting-rights are allegedly violated by it.” In short, “for each of the potentially thousands of voters whose wrong-precinct ballots are disqualified under this provision of the election code due to poll-worker error, Ohio’s strict prohibition imposes a severe burden on their right to vote—i.e. summary, arbitrary, and irreversible rejection of their entire ballot without notice."
The decision will likely be appealed to the Sixth Circuit Court and may go before the Supreme Court before all is said and done. Voting rights groups still have multiple fronts to fight in Ohio—over the length of early voting hours, voting in the last three days before the election, etc.—but this news was exciting nonetheless. As Weiser says, “Nobody wants to go through all the trouble to fulfill their civic duty in voting and not have their vote count.”