A federal court ruling this summer will decide the constitutionality of Ohio laws for counting provisional ballots, and whether some of those ballots — thousands of them, potentially — should be counted in this fall’s presidential election. The case revolves around a 2010 legal agreement, called a consent decree, that ensures certain defective provisional ballots would be counted if a poll worker’s mistake is to blame. In the 2011 general election, more than 1,500 provisional ballots were counted statewide on account of the consent decree, according to the secretary of state’s office. That number likely would increase in this fall’s presidential election. Republican Secretary of State Jon Husted and others, however, argue the consent decree should be voided because it conflicts with existing Ohio law that does not allow defective provisional ballots to be counted, regardless of poll worker error.
Service Employees International Union Local 1199, the Ohio Democratic Party and a local homeless coalition are on the other side, claiming the consent decree’s safeguards are essential to protecting the voting rights of poor people and others who use provisional ballots. Without these protections, Ohio laws for counting provisional ballots — ballots cast when a voter’s eligibility is in question — would be unconstitutional, they argue. “We need to get this cleared up so people are not disenfranchised,” said Don McTigue, a lawyer representing the Ohio Democratic Party. “That’s why this is a big deal.”