SEIU v. Husted (Amicus Brief)
The Brennan Center filed an amicus brief in SEIU v. Husted, urging the Sixth Circuit to affirm a preliminary injunction prohibiting Ohio from discounting provisional ballots with technical deficiences, when those deficiencies are the result of poll-worker error.
In June 2012, a coalition of labor organizations on behalf of tens of thousands of Ohio voters filed a motion for a preliminary injunction alleging that an Ohio law rejecting provisional ballots cast in the wrong precinct or with deficiencies on the ballot envelope — even when those deficiencies are attributable to poll-worker error — placed an unconstitutional burden on their right to vote. Over 11,000 such provisional ballots were discounted 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, many counties consolidate multiple voting precincts into single polling locations, increasing the chance that a voter can be given a ballot for the wrong precinct even if she appears at the right polling location.
On August 27, 2012, Judge Algenon Marbley issued an order granting Plaintiffs’ motion for a preliminary injunction, finding that Ohio’s provisional-ballot-counting rule placed a severe burden on voters without any legitimate justification. Judge Marbley ordered Ohio Secretary of State Jon Husted to instruct county boards of elections that they must 1) count wrong-precinct provisional ballots unless a poll-worker directed the voter to the correct precinct and informed the voter that a wrong-precinct ballot would be rejected, but the voter nevertheless insisted on casting a ballot in the wrong precinct; and 2) count provisional ballots cast by verifiably eligible voters even if the ballot envelope was incorrectly filled out. The order provides clear rules in advance of the election so as to prevent protracted post-election review and litigation over ballots cast as a result of poll-worker error.
On September 6, 2012, Ohio Secretary of State Husted appealed the ruling to the United States Court of Appeals for the Sixth Circuit. The Brennan Center, along with Professor Daniel Tokaji of Moritz College of Law, Lawyers’ Committee for Civil Rights, and Arnold & Porter LLP, coauthored an amicus brief on behalf of the League of Women Voters and Common Cause, urging the appellate court to affirm the preliminary injunction.
On October 11, 2012, the Sixth Circuit issued an opinion affirming the preliminary injunction for wrong precinct-right location provisional ballots.
On separate motions, both parties moved to transform the preliminary injunction into a permanent injunction. On July 9, 2013, Judge Marbley granted the motions for permanent injunction, prohibiting Ohio from disqualifying provisional ballots cast in the correct polling place but incorrect precinct.