Fights over new tough voting restrictions, imposed mostly by Republican legislatures and elections officials, are finally getting the national attention they deserve: Thank you, Sarah Silverman, for your video, expletives and all, about new and controversial voter identification laws. But an appeal being argued today by telephone, SEIU v. Husted, has remained obscure—even though if the election goes into overtime in Ohio, it could be key to the resolution of the presidential election.
At issue are potentially thousands of Ohio ballots that the state will not count solely because of poll worker error. Here’s the problem: A number of the state’s polling places, especially in cities, cover more than one voting precinct, and in order to cast a valid vote, a voter has to be given the correct precinct ballot. Poll workers, however, often hand voters the wrong precinct ballot mistakenly. In earlier litigation involving a disputed 2010 juvenile judge race in Hamilton County, Ohio, a poll worker testified to sending a voter whose address started with the numbers “798” to vote in the precinct for voters with odd-numbered addresses because the poll worker believed “798” was an odd number. This “right church, wrong pew” problem with precinct ballots was a big problem in 2008, when over 14,000 such ballots were cast.
Ohio law says wrong precinct ballots cannot be counted, even for the races for which a person is eligible to vote (including president), and the Ohio Supreme Court confirmed this point in 2011, in the dispute over the juvenile judge race. Astonishingly, under Ohio law a voter can be disenfranchised not through some nefarious plan but through the simple incompetence of poll workers.
In the SEIU case, voters are arguing that the failure to count wrong precinct ballots caused by poll worker error violates the Constitution’s guarantees of equal protection and due process. A federal district court in Ohio agreed, and issued a preliminary injunction requiring the state to count these ballots (and some other provisional ballots as well). Ohio has appealed to the United States Court of Appeals for the 6th Circuit—that’s the hearing today.
The district court judge relied in part on an earlier 6th Circuit ruling involving that same disputed judicial race. The 6th Circuit said that as a matter of constitutional law, once the Hamilton County elections board agreed to count some wrong precinct ballots caused by poll worker error it had to count all of them. The district court decision in SEIU extends this principle and says that wrong precinct ballots caused by poll worker error must be counted, even if Ohio law commands that election officials count none of them.
The district court also relied on another important election case: Bush v. Gore. What you may not remember about the 2000 case in which the Supreme Court ended the Florida recount, handing the election to George W. Bush over Al Gore, is the basis for the court’s reasoning. The court held that the way Florida had been conducting the recounts—with shifting standards for what counted as a valid vote on a “punch card ballot,” decisions to recount only some of the ballots, and other problems—violated the Constitution’s equal protection guarantees. In the words of the court, “having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over another’s.”
For years courts and scholars have fought over whether Bush v. Gore has any jurisprudential legs, and I’ve argued that it mostly hasn’t. But in the earlier ruling I mentioned, the 6th Circuit began to revive Bush v. Gore as the basis for expanding voting rights.
All of this may come to a screeching halt soon after today’s hearing. The 6th Circuit is a court deeply divided by ideology and party. The judges on it have had numerous fights over election rules, including a 2008 case in which the conservatives on the court—over the objection of the liberals—read a federal statute broadly to allow the Republican Party to sue the Democratic Ohio secretary of state. It was a flip of the usual ideological positioning of both parties’ judges, but it lined up with what I found in my book, The Voting Wars: Judges often divide in controversial election cases along party lines.
The three judges assigned to hear the appeal of the district court’s ruling today in SEIU v. Husted are quite conservative, and it seems likely these judges will reverse the district court and allow Ohio officials to disenfranchise voters who did everything right in order to be able to cast a ballot—just because their polls workers did something wrong.
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