Roland Gilbert accidently wrote the current date, instead of his birthdate, when filling out the form on the envelope for submitting his absentee ballot in Ohio’s 2014 general election (which included a gubernatorial race). It’s a mistake that all, or at least most of us, have made at one time or another in our lives when filling out forms. Is it a mistake that should disqualify Roland Gilbert’s absentee ballot from being counted? As a policy matter, I certainly think not. Moreover, this policy position recently has been adopted by the American Law Institute, a prominent nonpartisan organization most famous for its Model Penal Code, Uniform Commercial Code, Restatements of Law covering a wide variety of fields (like contracts, torts, and property law), and other law-improvement projects. In its new Principles of Law project concerning Election Administration, the ALI takes the position that an absentee ballot should not be invalidated if the identity of the absentee voter can be verified and the voter is registered and eligible to cast the ballot. (Full disclosure: together with my Election Law @ Moritz colleague Steve Huefner, I serve as Reporter to the ALI project that developed this and related principles.)
With respect to Roland Gilbert, there was no dispute that he was a registered and eligible voter. Nor was there any dispute that the absentee ballot in question had been cast by him. As required by a separate provision of Ohio law, he had supplied identification information for his absentee ballot (driver’s license number, or SSN, or the like), and this information sufficed to verify his identity—and his ballot’s authenticity. Yet his ballot was rejected—and thus Roland Gilbert disenfranchised—apparently for the sole reason that he mistakenly wrote the current date instead of his birthdate on his absentee ballot envelope.
This disenfranchisement seems wrong and undemocratic, disturbingly so. But is it unconstitutional? That legal issue is at the heart of the pending case, NEOCH v. Husted, in which federal district court Judge Algenon Marbley recently ruled that this disenfranchisement does violate the equal protection clause of the federal Constitution. Ohio’s Secretary of State Jon Husted has since appealed the case to the Sixth Circuit federal appellate court.
Full Article: Moritz College of Law | Election Law @ Moritz | Article | When Should a Voter’s “Clerical Error” Invalidate a Ballot?.