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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.

Published: July 10, 2013

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.