January 24, 2013
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.