Counting Provisional Ballots

Lawmakers Should Clarify Murky Rules for Counting Provisional Ballots

The Columbus Dispatch

Editorial: Ballot issue
Lawmakers should clarify murky rules for counting provisional ballots
Friday, January 21, 2011 02:51 AM

The Columbus Dispatch

When Ohioans go to the polls, they don't expect their lapel sticker to read 'I might have voted.'

So the General Assembly should make crystal clear the rules for counting provisional ballots, of which more than 105,000 were cast in last fall's general election.

The ballots -typically used by those who moved without updating registrations or who left identification at home - are meant to prevent disenfranchisement. But the effect might be the opposite. Of those attempting to vote provisionally last fall, 1 in 10 failed.

When to use provisional ballots and whether to count them routinely stumps voters, poll workers and election boards. Whether these ballots are counted often depends on which county is doing the counting.

Now, even the courts are muddled. In the past month, a federal court and the Ohio Supreme Court issued conflicting rulings on a common problem with provisional ballots, often referred to as "right church, wrong pew."

State law says provisional ballots don't count if the voter went to the correct polling location but voted in the wrong precinct. Imagine a big school gymnasium with multiple precinct tables. It's easy to see how voters might be confused. But poll workers also may struggle, consulting maps to figure out precinct boundaries that determine a ballot's races and issues.

So the question is: If a poll worker goofs, ought the voter pay? Is it fair to discount common, top-of-the-ticket races - for example, governor - because a ballot had the wrong liquor option?

In Hamilton County, where two candidates for juvenile-court judge were separated by 23 votes in the Nov. 2 election, the answer was a compromise.

The elections board opted to count 27 provisional ballots because voters were handed incorrect precinct ballots by workers at the elections office. But the board nixed 150 ballots resulting from mix-ups by workers at polling places.

The losing candidate sued in U.S. District Court, where a judge ruled that both sets of provisional voters deserve equal protection.

Her order to count the remaining 150 provisional votes, however, conflicted with an Ohio Supreme Court ruling, prompted by the winner's lawsuit. State law is clear, the high court said: Provisional ballots cast in the wrong precinct don't count. Period.

But how does one un-ring the bell? Hamilton County had counted, and mixed in, those 27 ballots.

The dispute over counting the 150 ballots went Thursday to the 6 {+t}{+h} U.S. Circuit Court of Appeals. The issue, of whether an appointed federal judge or the elected Supreme Court is the final arbiter of state voting laws, could land before the U.S. Supreme Court.

The stage is set, Ohio's new Secretary of State Jon Husted said, "for a constitutional showdown."

Husted called upon the state legislature to clarify provisional voting rules. This week Rep. Michael Stinziano, D-Columbus, a former Franklin County Board of Elections director, supported a bill that will start legislative action, but broader election-reform issues linger.

It's time for lawmakers to put an end to the interminable lawsuits and accusations of voter suppression that undermine confidence in Ohio elections.