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Ohio Must Count Ballots Cast in Wrong Precinct

A federal appeals court in Cincinnati today decided two cases related to Ohio’s provisional voting procedures, ruling that it is unconstitutional to toss out ballots that are cast in the incorrect voting precinct due to poll-worker error.

Ohio law “effectively requires voters to have a greater knowledge of their precinct, precinct ballot, and polling place than poll workers,” the three-judge panel of the U.S. Court of Appeals for the 6th Circuit said.

Ohioans cast 200,000 provisional ballots in the 2008 elections, and 14,000 of those were rejected for being cast in the wrong precinct. Given that the state increasingly uses polling locations that serve voters from more than one precinct and that 13 different classes of voters are required to use provisional ballots, the reality exists that “thousands” of ballots would be tossed out “where the voter’s only mistake was relying on the poll-worker’s precinct guidance,” the judges said.

“This is the most important decision in this election cycle,” election law expert Rick Hasen wrote on the “Election Law Blog.”

It is the second time in as many weeks that the U.S. Court of Appeals for the 6th Circuit has ruled against Ohio in election-related cases.

Just last week, it blocked changes made to Ohio’s early voting rules that allowed some military voters to cast ballots in the three days before Election Day while barring nonmilitary voters from doing the same. Ohio Secretary of State Jon Husted (R) has asked the U.S. Supreme Court to grant an emergency stay in that case until the court can hear the state’s appeal.

Husted’s office was not available to comment on its next steps in the provisional-ballot case. A spokesman for Ohio Attorney General Mike DeWine (R) said there were “multiple issues” that were decided today and the office was still reviewing the specifics.

The provisional-ballot case began in 2006 when the Service Employees International Union and the Northeast Ohio Coalition for the Homeless challenged multiple provisions of the state’s new voter identification laws. The groups entered into a consent decree with then-Secretary of State Jennifer Brunner that resolved their complaints. The issue was revived in 2011 when the Ohio Supreme Court decided that state law did not protect voters who cast provisional ballots in the wrong precinct because of poll-worker error.

The state returned to court after that ruling to vacate the consent decree, which prompted the groups to bring a second legal challenge in federal court.

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