What You Need to Know About Ohio

JB

The Help America Vote Act (HAVA) passed by Congress in 2002, required that states allow voters to cast provisional ballots if their right to vote is in doubt, and the right to have provisional ballots counted if their ballot is eventually determined to be valid. But HAVA leaves to the states to determine the standards for validity. Nevertheless, lawyers for the two sides may raise legal challenges under both Ohio law and federal law. The reason is another relic of the 2000 election, the Supreme Court’s decision in Bush v. Gore.

A majority of the Justices in Bush v. Gore held that Florida judicial officials violated the Equal Protection Clause when they recounted ballots without a uniform statewide standard to determine the voters’ intentions. Unlike Florida in 2000, Ohio election law has a uniform standard for determining the validity of punch card ballots: At least two corners of the punch card must be detached for the vote to be counted as valid. But plaintiffs can raise further legal challenges for provisional ballots and absentee ballots, because Ohio law does not provide clear standards for counting them.

Ohio’s secretary of State, Ken Blackwell, issued a directive on Friday, October 29, 2004 about how to count provisional and absentee ballots. Audrey Schering, a voter in Hamilton County Ohio, challenged that directive on election day, arguing that it doesn't’t give sufficiently clear standards for counting those ballots– that is, that it violates the equal protection theory of Bush v. Gore.

Provisional ballots are reviewed by election boards in each of Ohio’s 88 counties, with two Democrats and two Republicans sitting on each board. Three members of the board must agree to count a provisional ballot. Schering argues that Blackwell’s directive is so barebones and vague that different boards may apply different standards to determine whether a voter is eligible, in violation of Bush v. Gore.

What happens if Blackwell clarifies his ruling? Then another aspect of Bush v. Gore kicks in. Three Justices– Chief Justice Rehnquist, Justice Thomas, and Justice Scalia-- argued that Article II, section 1 of the Constitution requires that the rules for counting ballots for Presidential electors must be determined by the state’s legislature before the election is held. If Blackwell’s clarification was considered a change in the rules not authorized by the Ohio legislature, one or the other side could argue that he acted in violation of Article II, section 1.

Remember that this is only about the first count of the ballots. If the margin is small enough after the provisional and absentee ballots are counted, either side may request a recount or stage an election contest. (Here are Ohio's recount procedures).

Note that under Ohio law a recount is automatic if the margin of victory (after taking all provisional and absentee ballots into account) is less then one quarter of a percent. In this case, that's around 13,000 votes.