Last-Minute Ohio Directive Could Trash Legal Votes

By Judd Legum, ThinkProgress

05 October 12

last-minute directive issued by Ohio Secretary of State Jon Husted (R) could invalidate legal provisional ballots. Ohio is widely viewed as the most critical state for both presidential campaigns and - with some polls showing a close race - the 11th-hour move could swing the entire election.

The directive, issued Friday, lays out the requirements for submitting a provisional ballot. The directive includes a form which puts the burden on the voter to correctly record the form of ID provided to election officials. Husted also instructed election officials that if the form is not filled out correctly by a voter, the ballot should not be counted.

According to a lawsuit filed by voting rights advocates, this is "contrary to a court decision on provisional ballots a week ago and contrary to statements made by attorneys for Husted at an Oct. 24 court hearing."

Indeed, it also appears directly contrary to Ohio law. From the lawsuit:

Ohio Rev. Code § 3505.181(B)(6) provides that, once a voter casting a provisional ballot proffers identification, "the appropriate local election official shall record the type of identification provided, the social security number information, the fact that the affirmation was executed, or the fact that the individual declined to execute such an affirmation and include that information with the transmission of the ballot . . . ." (Emphasis added.)

The law "ensures that any questions regarding a voter's identification are resolved on the spot or, consistent with due process, the voter is informed that he or she needs to provide additional information to the board of elections. This protects the integrity of the voting process, and provides a reasonable opportunity to resolve deficiencies."

The last-minute directive changes this and switches the burden to the voter, greatly increasing the chances that legal provisional ballots will be discarded.

The court gave Husted until Monday to respond to the lawsuit and indicated it will resolve the dispute before provisional ballots are counted on November 17.

Husted has also tried to limit voting in Ohio by reducing early voting hours.