On September 17, 2008, two Ohio citizens sued Ohio’s Secretary of State in an attempt to overturn a policy that required county election officials to reject absentee ballot requests submitted by thousands of registered voters who failed to check an unnecessary box on the ballot request form.
The rejected voters had used an absentee ballot request form created by the McCain campaign, which included a statement saying “I am a qualified elector and would like to receive an Absentee Ballot for the November 4, 2008 General Election.” There were no paired “yes” and “no” check boxes next to the statement, but there was an unlabeled square box. Some voters interpreted it as a check box, and checked it off, but many voters believed it was just a bullet point. They left the box blank, filled out the rest of the ballot request, and signed it.
Under the challenged policy, these “un-checked” ballot requests had to be rejected – even though Ohio law doesn’t require any check boxes at all, and specifically provides that absentee ballot applications “need not be in any particular form.”
The Brennan Center, along with the ACLU of Ohio and Professor Daniel Tokaji, filed an amicus brief in support of the citizens challenging this misguided policy. The brief explained that preventing voters from casting votes because of imperfect paperwork violated Section 1971 of the Voting Rights Act, and urged the Ohio Supreme Court to enforce federal voting rights law and order the state to accept the absentee ballot forms in question.
On October 2, 2008, the Ohio Supreme Court ruled unanimously that ”[n]o vital public purpose or public interest is served by rejecting electors’ applications for absentee ballots because of an unmarked check box next to a qualified-elector statement," and ordered that the ballot requests be accepted.
Selected documents can be found below. All legal documents related to the case may be found here.
- Brennan Center Amicus Brief (10/2/08)