For Immediate Release
An Election Day Catch-22: Voters Must Be Given Provisional Ballots; But Election Officials Cannot Count Them
New York, NY—A lawsuit filed today on behalf of Ohios voters asks a federal judge to stop Ohio Secretary of State J. Kenneth Blackwell from proceeding with the States plan for handling provisional ballots in the upcoming November 2 election.
The suit identifies a trend in which the top election officials in battleground states have implemented rules that violate the Help America Vote Act, the 2002 law enacted by Congress in response to the 2000 presidential election debacle. Last week, a similar lawsuit against Michigans Secretary of State was filed by voting rights groups.
The suit asks the federal court for the Northern District of Ohio to declare that Ohios rules on provisional ballots violate federal law. The complaint also asks the court to require Secretary Blackwell to "promptly issue a new directive to all Ohio county boards of elections, instructing them to issue and count provisional ballots in accordance with the Help America Vote Act."
"The actions by top officials in Ohio and Michigan turn federal voting protections on their head," said Wendy R. Weiser, associate counsel at the Brennan Center for Justice at NYU School of Law. "The Help America Vote Act is clear: provisional ballots are to be used as a fail-safe so that certain classes of eligible voters are not disenfranchised. Yet the directives from Ohio Secretary of State Blackwell literally forbid these provisional ballots from being counted. Apparently, the lessons of 2000 have not been learned."
A number of plaintiffs have joined the lawsuit on behalf of Ohios voters: The League of Women Voters of Ohio; Ohio AFL-CIO; People for the American Way Foundation; ACORN; Ohio Council 8, AFSCME; The Coalition of Black Trade Unionists; A. Philip Randolph Institute; The Coalition of Homelessness and Housing in Ohio, and Project Vote.
Plaintiffs argue that Secretary of State Blackwells directives concerning provisional ballots would illegally take away the vote from two classes of eligible voters: (1) first time voters who face special new ID requirements on Election Day; and (2) citizens who vote in the wrong polling place.
A Blackwell directive issued in February imposes this Catch-22 on first time voters: First time voters who register by mail and arrive at their polling place without ID must be given a provisional ballot; but the provisional ballots may not be counted unless these voters provide ID. (Directive 2004-07, Feb. 20, 2004.)
With respect to voters going to the wrong polling place, a September Blackwell directive imposes similarly contradictory requirements: Federal law mandates that eligible voters in the wrong polling place must be allowed to vote by provisional ballot; but according to the September directive from the Ohio Secretary of State, "under no circumstances shall precinct pollworkers issue a provisional ballot to a person whose address is not located in the precinct." (Directive 2004-33, Sept. 16, 2004.)
Both the Ohio and Michigan Democratic Parties also have filed lawsuits dealing with provisional ballots. The party suits address only voters who go to the wrong polling place. Unlike the lawsuit filed today by voting rights groups, the party lawsuits do not represent plaintiffs who are new voters without identification.
Plaintiffs are represented by the Brennan Center for Justice at NYU School of Law, the Advancement Project, the law firm of Manatt, Phelps & Phillips, LLP, and a number of Ohio attorneys.
For additional information about Brennan Center efforts to promote policies that protect rights to equal electoral access and political participation, please visit the Center’s Voting and Representation.
The Brennan Center for Justice at NYU School of Law, founded in 1995, unites thinkers and advocates in pursuit of a vision of inclusive and effective democracy. Its mission is to develop and implement an innovative, nonpartisan agenda of scholarship, public education, and legal action that promotes equality and human dignity, while safeguarding fundamental freedoms.
Please visit www.brennancenter.org.