The 6th U.S. Circuit Court of Appeals ruled on Thursady that Ohio can’t toss out ballots that were cast in the wrong precinct but in the right location because of poll worker error.
It is especially important because this was a very conservative Sixth Circuit panel, and it affirms the idea that Bush v. Gore and Sixth Circuit precedent requires some degree of uniformity and fairness in the counting of ballots.
The application of Ohio Rev. Code §§ 3505.183(B)(4)(a)(ii) and (B)(4)(b)(ii) to right-place/wrong-precinct ballots caused by poll-worker error effectively requires voters to have a greater knowledge of their precinct, precinct ballot, and polling place than poll workers. Absent such omniscience, the State will permanently reject their ballots without an opportunity to cure the situation. The mere fact that these voters cast provisional ballots does not justify this additional burden; as the district court explained, Ohio law now requires thirteen different categories of voters to cast provisional ballots, ranging from individuals who do not have an acceptable form of identification to those who requested an absentee ballot or whose signature was deemed by the precinct official not to match the name on the registration forms….
Nor has the State shown abuse in the district court’s fashioning of injunctive relief tailored to the identified harm. The State would disqualify thousands of rightplace/wrong-precinct provisional ballots, where the voter’s only mistake was relying on the poll-worker’s precinct guidance. That path unjustifiably burdens these voters’ fundamental right to vote. Recognizing that a prospective remedy could not undo all of the harm occasioned by poll-worker error, the district court crafted a narrow remedy that preserves as much of a miscast ballot as possible.
This problem is called “right church, wrong pew.” To understand it, it’s important to make a distinction between a polling place and a precinct within a polling place. Here, the voter would not qualify for a standard ballot, and would be forced to rely on a provisional ballot. The poll worker would then mistakenly direct the voter to cast the provisional ballot in the wrong precinct. Wrong precinct. Right polling location. Republicans want the ballot that was cast in the wrong precinct due to poll worker error thrown out. Democrats and voting rights advocates want it counted in.
This problem came to light in a county juvenile judge race in 2010. There, a federal judge did an extremely thorough job and determined that poorly trained poll workers were making “right church wrong pew” mistakes, and also directing voters who should have voted a standard ballot to a provisional ballot.
If the Presidential election in Ohio is close, it will come down to provisional ballots.