Count Ohio’s Votes: Court Must Reject Ohio Provisional Ballot Rules

Contact: Erik Opsal, erik.opsal@nyu.edu, 646–292–8356

Ohio election officials must count all provisional ballots cast in the wrong precinct due to poll-worker error, the Brennan Center for Justice argued in an amicus brief submitted Friday.

Voters are entitled to cast a provisional ballot if their name does not appear on the voter registration list in their precinct on Election Day. Those ballots are later counted if the voters’ information is verified. But Ohio law rejects provisional ballots cast in the wrong precinct — even when voters arrive at the right location and are handed the wrong ballot by a poll worker. More than 10,000 wrong-precinct ballots were thrown out in the 2008 election in Ohio.

With complex ballot procedures and voter identification requirements, Ohio has one of the highest provisional ballot rates in the country. Adding to the confusion, most voting precincts are located in polling locations containing more than one precinct, increasing the chance that a voter will be given a ballot for the wrong precinct even if he or she appears at the right polling location.

“Our voting system should be free, fair, and accessible to all eligible Americans,” said Vishal Agraharkar, Counsel for the Brennan Center’s Democracy Program. “When citizens take responsibility to go to their polling places and vote, it is wrong to throw out their votes just because of poll worker errors. All Ohioans should have the opportunity to make their voices heard this election.”

“This case is critical to ensure fair ground rules for the election in Ohio and to stave off preventable litigation about the vote count,” added Wendy Weiser, Director of the Democracy Program.

In August, a federal judge issued a preliminary injunction against Ohio’s provisional-ballot-counting rule. The case, SEIU v. Husted, is currently before the Sixth Circuit Court of Appeals.  The Brennan Center — along with Professor Daniel Tokaji of Moritz College of Law, Lawyers’ Committee for Civil Rights, and Arnold & Porter LLP — filed the brief on behalf of the League of Women Voters of Ohio and Common Cause Ohio, urging the appellate court to affirm the preliminary injunction.

To speak with a Brennan Center expert, please contact Erik Opsal at erik.opsal@nyu.edu, 646–292–8356.