Judge rejects Ohio bid to end ballot agreement

ANDREW WELSH-HUGGINS

AP Legal Affairs Writer

COLUMBUS — A fed­eral court agree­ment gov­ern­ing rules for count­ing pro­vi­sional bal­lots in Ohio does not con­flict with state law and will remain in place, a judge ruled Mon­day in reject­ing argu­ments by the state’s elec­tions chief to toss out the agreement.

At issue were require­ments for pro­vid­ing iden­ti­fi­ca­tion when a voter has to cast a pro­vi­sional bal­lot, typ­i­cally a bal­lot cast in the wrong precinct.

Sec­re­tary of State Jon Husted argued in May that the two-year-old agree­ment set­tling a law­suit over pro­vi­sional bal­lots includes rules that run counter to Ohio elec­tions law.

“Here there is an order com­pelling state offi­cials to vio­late state law, not in the inter­ests of rem­e­dy­ing a fed­eral con­sti­tu­tional vio­la­tion (for none has been found), but merely because prior office hold­ers exceeded their author­ity in agree­ing to do so,” the Ohio Attor­ney General’s Office argued on Husted’s behalf in a May 30 court filing.

Husted spokesman Matt McClel­lan said the office had not yet seen the rul­ing and couldn’t imme­di­ately comment.

The debate over the fed­eral court agree­ment dates to 2006, when a state law laid out the require­ments for when pro­vi­sional bal­lots are counted, start­ing with vot­ers who have only the last four dig­its of a Social Secu­rity num­ber as identification.

A 2006 law­suit by advo­cates for home­less vot­ers chal­lenged the state law, and in 2010 then-Secretary of State Jen­nifer Brun­ner, a Demo­c­rat, entered into a fed­eral con­sent decree that was more lenient when it comes to pro­vi­sional ballots.

In gen­eral, state law is more restric­tive than the fed­eral decree when it comes to pro­hibit­ing pro­vi­sional bal­lots. For exam­ple, the law doesn’t allow pro­vi­sional bal­lots for votes cast in the wrong precinct because of a poll worker’s mis­take, whereas the decree would allow such votes to be counted.

Husted has issued orders to county elec­tion boards telling them to fol­low the con­sent decree when deal­ing with pro­vi­sional bal­lots. But Husted’s office has also said he remains con­cerned about the con­flict between state law and the fed­eral order.

In a 37-page rul­ing Mon­day, Mar­b­ley rejected Husted’s call to throw out the agree­ment. Mar­b­ley found there is no con­flict between the agreement’s require­ments and Ohio elec­tions law as inter­preted by the Ohio Supreme Court in ear­lier rulings.

Because the agree­ment is not incon­sis­tent with Ohio law, Mar­b­ley said, he rejected Husted’s argu­ment that state offi­cials lacked the author­ity to enter into the agree­ment on the basis that it “had the effect of amend­ing Ohio law.”

Ohio’s next major elec­tion is Nov. 6, when vot­ers will cast votes in one of the country’s most con­tested U.S. Sen­ate races and elect the pres­i­dent. No Repub­li­can has ever taken the White House with­out win­ning Ohio, and only two Democ­rats have done so in more than a century.

Posted by AP News on Jul 9 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.