Ohio Secretary of State Jon Husted's last-minute order shifting the burden from the poll worker to a voter for marking what type of identification was used by a voter casting a provisional ballot violated a prior court order, Ohio law and the U.S. Constitution, a federal judge found Tuesday.
U.S. District Court Judge Algenon Marbley's opinion will not be the last word, however, as Husted, a Republican, plans to appeal the ruling to the Sixth Circuit Court of Appeals.
"Secretary Husted will appeal today’s ruling because it allows potentially fraudulent votes to be counted," Matthew McClellan, a spokesman for Husted, told BuzzFeed on Tuesday evening. "By eliminating the ID requirement on provisional ballots, the ruling is contrary to Ohio law and undermines the integrity of the election."
Marbley's ruling, if it is upheld on appeal, will lead to more provisional ballots being found to be valid and counted in the Buckeye State. The ruling is an afterthought because of President Barack Obama's wide electoral college victory — but in a close election, the fate of the presidency could easily have hinged on the federal courts' rulings in this case.
As part of an ongoing court order, called a consent decree, in a case brought on behalf of the Northeast Ohio Coalition for the Homeless (NEOCH) and following recent decisions relating to the state's provisional ballots, Husted issued a directive on the Friday before the election to county boards of elections on "Determining the Validity of Provisional Ballots and the Modified NEOCH Consent Decree."
In it, an earlier designed form (Form 12-B) — that purports, in Step 2, to shift the responsibility for noting the type of identification used by a provisional voter from the poll worker to the voter — was again utilized. Opponents of the move filed an emergency motion before Marbley, who ruled Tuesday.
Marbley wrote that "in shifting that duty to the voter, Step 2 of Form 12-B imposes an impermissible burden in violation of [Ohio law] and, therefore, the Consent Decree. By admission of counsel, the Secretary engaged in no fact-finding to determine that such a change would increase the integrity of the voting system."
After reviewing the law, Marbley concluded that the directive "violates the Consent Decree and the law of Ohio." Additionally, he found that the directive "violates substantive due process as guaranteed by the Fourteenth Amendment" to the U.S. Constitution.
In substantive part, Marbley ordered that:
an incomplete or improperly completed “Step 2” shall not cause any provisional ballot to be rejected, unless: (1) a poll-worker has recorded on the provisional ballot affirmation that the voter is required to return to the county board of elections with proper identification; (2) a poll worker has recorded what identification information the voter must bring; and (3) the voter did not return with the necessary identification within ten days of the election.
Marbley, who has shown his dissatisfaction with certain actions of Husted's office, also took a swipe at the timing and motives of Husted's action, writing:
The Court also notes, with grave misgivings, that the Secretary changed an election rule on a Friday evening for an election scheduled for the following Tuesday, after repeatedly asserting, to both this Court and the Sixth Circuit, that he could not comply with injunctive relief ordered by this Court because he lacked sufficient time prior to the election. The surreptitious manner in which the Secretary went about implementing this last minute change to the election rules casts serious doubt on his protestations of good faith.
In the absence of a successful appeal or a stay of his ruling, Marbley ordered Husted to issue a contrary directive, applying his ruling, by Nov. 16 — after the language is agreed to by the lawyers for the plaintiffs or, alternatively, the court.