Judge demands Ohio provisional ballot answers

ANDREW WELSH-HUGGINS

AP Legal Affairs Writer

COLUMBUS — A fed­eral judge on Wednes­day angrily demanded that attor­neys for Ohio’s elec­tions chief name the author of an election-eve order that placed the respon­si­bil­ity of explain­ing what kind of iden­ti­fi­ca­tion vot­ers use on pro­vi­sional bal­lots on the vot­ers themselves.

U.S. Dis­trict Court Judge Algenon Marbley’s voice rose nearly to a shout at times as he asked attor­neys what research the Ohio Sec­re­tary of State’s office had done before issu­ing Friday’s after-hours order.

“You have a lot of explain­ing to do,” Mar­b­ley told assis­tant Ohio attor­ney gen­eral Aaron Epstein at a hear­ing in Colum­bus the morn­ing after the elec­tion. A few min­utes later, he demanded that Epstein and other state attor­neys explain the ratio­nale behind the order.

“Show me the facts that the sec­re­tary used to make the deci­sion to change this direc­tive at 7 o’clock on a Fri­day night on the eve of an elec­tion,” Mar­b­ley said. “I want to see it, and I want to see it now.”

State attor­neys had acknowl­edged in an Oct. 24 hear­ing that it was the duty of poll work­ers’ to record such infor­ma­tion, not voters.

Mar­b­ley asked what had changed between then and Friday’s new order. Epstein said he didn’t believe the order changed exist­ing law on pro­vi­sional ballots.

After a short break, Epstein told Mar­b­ley the draft­ing of the order was a col­lab­o­ra­tive effort by sev­eral mem­bers of the Sec­re­tary of State’s Office. Mar­b­ley was sat­is­fied with the response.

At issue is an order released by Sec­re­tary of State Jon Husted that requires that vot­ers check a box explain­ing what ID they can offer if they weren’t able to pro­vide the last four dig­its of their Social Secu­rity num­ber or their Ohio driver’s license number.

Alter­na­tive ID could include a mil­i­tary ID or a util­ity bill.

Voter advo­cates say putting the require­ment on vot­ers increases the like­li­hood that bal­lots could be wrongly rejected and asked Mar­b­ley to hear the issue.

Epstein said state law calls for vot­ers and poll work­ers to share respon­si­bil­ity for pro­vid­ing the information.

The hear­ing was sched­uled before Tuesday’s elec­tion, but the stakes of the out­come dimin­ished after the elec­tion ended with Pres­i­dent Barack Obama win­ning the pres­i­dency and GOP can­di­date Mitt Rom­ney conceding.

Some had feared the elec­tion could come down to pro­vi­sional bal­lots cast in Ohio. Such bal­lots are typ­i­cally cast by vot­ers who don’t have the proper ID or who cast votes in the wrong polling place.

Dur­ing the hear­ing, Mar­b­ley told state attor­neys that “Democ­racy dies in the dark,” and said last-minute orders done late in the day seek “to avoid transparency.”

Although he was hard on state attor­neys, Mar­b­ley also played Devil’s advo­cate with attor­neys for voter advo­cates who com­plained about the last-minute order.

“Since I the voter am pro­vid­ing you the poll worker with my type of iden­ti­fi­ca­tion, why can’t I the voter check off what type of iden­ti­fi­ca­tion I’m pro­vid­ing to the poll worker?” Mar­b­ley asked.

That could lead to the dis­en­fran­chise­ment of vot­ers for fail­ing to fill out that infor­ma­tion, responded Bar­bara Chisholm, an attor­ney rep­re­sent­ing home­less voters.

Mar­b­ley acknowl­edged in court that his ques­tions were ani­mated because of his spe­cial regard for vot­ing rights.

Mar­b­ley, who is black, grew up in the south and received his bachelor’s from the Uni­ver­sity of North Car­olina. He has often spo­ken of the impor­tance of vot­ing rights to him per­son­ally based on events he saw grow­ing up. Pres­i­dent Bill Clin­ton appointed him to the bench in 1997.

Posted by AP News on Nov 7 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.