Ohio’s Provisional Ballots Are The Legal Battle This Election


There is no way to allow my readers a short and easy route to follow this story regarding Ohio’s provisional ballots.  But I can say this story has ‘legs’ and if the contest in Ohio is close or if anyone wants to make political ‘hay’ then this story is not only to get more complex, but could drag out for weeks after the election is over.

So…strap yourself to the chair where you sit, and digest some news from Ohio.

I think it absurd that in this land we do not operate from one set of rules for everyone, every state, everywhere when it comes to how elections are conducted.  This story from Ohio is not how our democracy should work.  It is embarrassing.  It sure as heck should not be the way readers around the globe view the way we run elections.  (For those readers from outside the U.S. that join me on CP, please do not think this is how everyone operates here.)

On Thursday, voting-rights advocates filed an “emergency motion” with a federal trial judge seeking his reassurance that provisional ballots in Ohio will be judged by the standard he endorsed (and Ohio reportedly agreed to) in a recent consent decree. That standard, the plaintiffs say, is “that a provisional-ballot form that has incomplete or improperly completed information regarding the type of identification proffered by a voter should be counted pursuant” to Ohio law, which, they say, makes the poll worker responsible for taking down the information.

Ohio has not yet responded to it with a filing in court — the state’s deadline is Monday. But it was a full day after this motion was filed that the secretary of state, at 6 p.m. on the Friday before the election, issued his contrary directive.

 UPDATE…The deadline for the State’s submission is late Tuesday, with reply briefs due from the plaintiffs on November 8 and a written order from the judge to follow. Even more reason to realize that if the election comes down to Ohio it will be a while before we know who has won.

The contours of the legal dispute aren’t narrowing, as some legal disputes do at this stage of an election contest, but instead are growing. They are growing because the secretary of state has just doubled down on his position about incomplete provisional ballots. If he was wrong on Thursday, you could say, he was even more wrong on Friday. And that will likely mean a Monday ruling* from Judge Marbley which will then be appealed into Tuesday (and beyond) to the 6th U.S. Circuit Court of Appeals.

This dispute is important for many reasons. First, it’s probably the most direct evidence yet that Ohio will be counting its provisional ballots for days or even weeks past Tuesday. The blossoming argument above assumes as it must that there will be a great deal of anxious vote counting after Election Day. This scenario hasn’t exactly been a secret. But here’s an actual live dispute for us all to watch. It’s also a reminder that anyone rooting for a resolution Tuesday night (or early Wednesday) ought to hope that it doesn’t all come down to Ohio. If it does, it will be weeks — and one judicial hearing after another — before we have an answer.

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