On the day after Election Day, just hours after Mitt Romney had conceded the presidential race to President Obama, Ohio Secretary of State Jon Husted sent his public lawyers into a federal courtroom in Columbus to try to disenfranchise his fellow citizens whose provisional ballots were not properly completed by poll workers. Here is the transcript for the extraordinary hearing held Wedneday by U.S. District Judge Algenon Marbley. It’s worth a read to get a sense both of the judge’s dismay at Ohio’s position and Ohio’s utter lack of a reasonable defense for Husted’s voter-suppression efforts.
Even though it was colored “blue” a few nights ago, Ohio hasn’t even begun to count hundreds of thousands of “provisional ballots” — more than 30,000 in the urban center of Cuyahoga County alone — cast by voters whose registration or identification was challenged at the polls. State officials are required to finish this task by the end of the month. So it still very much matters that the correct standard of review is applied by election officials when they sort through those ballots. It matters to get an accurate count in 2012, of course, but also because of the precedent it could set for the countless elections to come.
Voting rights advocates thought they had a workable deal about the standards for such ballots in late October when Judge Marbley entered a consent decree: (1) acknowledging that poll workers were required to record identification information offered by a voter and (2) making Ohio responsible, and thus the ballot otherwise valid, if any poll workers made errors while collecting or transcribing that information. Judge Marbley’s decree was fair, it secured broad voting rights for registered voters, and it was consistent with the text of Ohio’s election statutes and with certain representations made at the time in court by Ohio’s attorneys.
But late Friday, after business hours and just a few days before the election, Husted sought to back away from the court-ordered standard. By means of a directive, he instructed local election officials to reject any ballots where the information was mistakenly recorded, absolving poll workers of the responsibility to properly complete the form. It is impossible to know how many registered voters would be disenfranchised by Husted’s directive. But it doesn’t look like we’ll ever have to find out. Judging from his demeanor Wednesday, Judge Marbley doesn’t appear inclined to let Husted’s directive go into effect.