Some Things Never End

Read the update on the fate of this mandamus action here.

On April 18, Tom Niehaus, President of the Ohio Senate, and Lou Blessing, a State Representative and Speaker Pro Tem, filed an original action in mandamus in the Supreme Court of Ohio against Secretary of State Jon Husted challenging a Consent Decree (“NEOCH consent decree”) entered into April 19, 2010 in federal court in Columbus by the Northeast Coalition for the Homeless, the Ohio Democratic Party and then Secretary of State Jennifer Brunner. This Decree was to settle a lawsuit (originally filed against Secretary of State Kenneth Blackwell) challenging the Ohio Voter ID laws and Provisional voting laws, which plaintiffs claimed disenfranchised homeless and poor voters who could not afford a state issued ID.

The NEOCH consent decree prohibits county boards of elections from rejecting provisional ballots cast by voters who use the last four digits of their social security numbers as identification (“NEOCH ballot”) if “the voter cast his or her provisional ballot in the wrong precinct, but in the correct polling place, for reasons attributable to poll worker error” or if “the voter did not complete or properly complete and/or sign the provisional ballot application for reasons attributable to poll worker error.” The NEOCH consent decree expires on June 30, 2013.

The NEOCH Consent Decree embraces the concept of poll worker error—a contentious issue in Tracie Hunter’s lawsuit over the Hamilton County Juvenile Court election. In the Hunter litigation, for example, Chief Judge Dlott ordered ten NEOCH ballots that were missing the voter’s printed first or last name or full signature to be investigated for poll worker error before the Board could accept or reject these ten NEOCH ballots for the missing information.

In their present mandamus action in the Supreme Court of Ohio, Niehaus and Blessing essentially are arguing that the rules for investigating provisional ballots under the NEOCH Consent Decree are contrary to state election law, improperly amend state election law, and exceed the authority of the Secretary of State to implement. They are asking the Court to order Secretary Husted to rescind all directives ordering the implementation of these challenged aspects of the consent decree.

There is a parallel universe operating here. In State ex. Rel. Painter v. Brunner,2011-Ohio-35, the Relators in that case also asked the Ohio Supreme Court to order then Secretary Brunner to rescind certain directives ordering the investigation of poll worker error in regard to provisional ballots cast in the right polling place but wrong precinct (known colloquially as right church, wrong pew). In the body of that opinion, the Ohio high Court made it absolutely clear that under Ohio law, ballots cast in the wrong precinct cannot be counted. Period. There is no exception for poll worker error. But the Court stopped short of a direct conflict with Judge Dlott’s order to further investigate certain right-church-wrong-pew provisional ballots for poll worker error. The case instead has veered off into equal protection considerations—all provisional ballots cast in the right polling place but wrong precinct due to poll worker error must be treated equally.

The showdown that didn’t happen in the Hunter case was whether to “uncount” the twenty seven provisional ballots the Board of Elections originally decided to count because they were cast in the wrong precinct at the Board of Elections itself, and then not to count any of the other right-church-wrong-pew provisional ballots either because Ohio law makes no exception for counting ballots cast in the wrong precinct.

To me, this latest challenge to the NEOCH Consent Decree feels like a surrogate for the challenge that never quite materialized in the Hunter case.