Whose votes count, whose don't? The legal landscape before Election Day
Here's how judges have ruled in four major election-law flash points: voter ID laws, early voting, provisional ballots, and the purging of voter registration rolls.
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Provisional ballots offer a potential treasure-trove of such votes because they involve a somewhat subjective decision by election officials whether to count a particular vote. Most important, the subjective decision is always made after the election.Skip to next paragraph
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That means if an election remains tied after counting all regular and absentee votes, provisional ballots might provide the margin of victory.
Provisional ballots are provided to voters who arrive at the polls without proper identification, who arrive at the wrong location to vote, whose name does not appear on the voter rolls, or who have requested an absentee ballot but nonetheless show up in person at the polls.
Voters are given 10 days to provide extra information to election officials. If election officials can verify the validity of the ballot, it is counted.
In Ohio, lawyers noticed a particularly large number of provisional ballots that are routinely rejected. They involved voters who cast their ballot in either the wrong voting place or the wrong precinct.
Part of the confusion is because Ohio allows more than one precinct to vote at the same voting place. So even though a voter arrived at the correct voting place, he or she might be directed to the wrong precinct, where the voter would be required to cast a provisional ballot.
Under Ohio election law, officials were required to automatically reject provisional ballots cast in either the wrong voting place or the wrong precinct.
These are not minor numbers. During the 2008 election that swept Obama into the White House, Ohio officials disqualified 14,336 provisional ballots solely because they were cast in either the wrong voting place or the wrong precinct.
In 2010, officials rejected 11,775 provisional ballots cast in the wrong location.
Recognizing that these votes would have been valid but for the Ohio rule, lawyers for a coalition of labor unions asked a federal judge to invalidate the provision.
The judge, an appointee of Clinton, struck down the rule and ordered Ohio officials to count provisional ballots cast in the right polling location but the wrong precinct. The judge reasoned that the mistake was most likely caused by poll-worker error, not the voter, and that a voter should not be disenfranchised because of an official’s mistake directing a voter to the wrong precinct.
Roughly two months later, on Oct. 26, the same judge expanded his ruling to require that officials count provisional ballots cast in both the wrong location and the wrong precinct. The ruling came on the 18th day of early voting in Ohio and 11 days before Election Day.
Given the persistent closeness of the race in Ohio, the Oct. 26 ruling was potentially a game changer. It might have freed up thousands of new votes that otherwise would have been tossed out.
State election officials appealed that ruling, and a three-judge appeals court panel reversed the decision.
The appeals court judges, all Republican appointees, said the judge had abused his discretion by expanding his earlier ruling.
They said the federal judge was correct to credit a provisional ballot cast in the wrong precinct when the error belonged to a poll worker. But, the appeals judges said, a voter who arrives at the wrong polling place must share some of the blame for the mistake.
The appeals court also said it was wrong for the judge to attempt to order a last-minute change in voting procedures.
“The expanded injunction opens the door for steering last-second voters to convenient (though incorrect) polling places, in hopes that some of the votes will count,” the court said.
Purging voter registration rolls
State election officials are required by law to maintain the accuracy of the rolls of registered voters.
Making a Difference