Once again, Ohio has escaped the national spotlight over how provisional ballots are counted. Such ballots, cast when questions arise on Election Day, are held, then examined by boards of elections. With the official count under way, all legal issues have been resolved, among them a last-minute dispute involving some 2,000 provisional ballots, or far from enough to affect the outcome of the presidential race.
Still, statewide elections in Ohio have been decided by fewer than 2,000 votes, making any problem with provisional ballots a potentially explosive one.
The last-minute issue, settled Friday by the Sixth U.S. Circuit Court of Appeals, focused on what happens when provisional ballots lack proper identification, most often, the last four digits of a voter’s Social Security number. The court, upholding Jon Husted, the secretary of state, blocked a district court ruling ordering such ballots be counted. That ended things, for this election.
U.S. District Judge Algenon Marbley argued that Ohio law requires poll workers — not voters — to record the right information, making mistakes the result of poll worker error, the ballots then eligible to be counted. He also criticized Husted for issuing a directive the Friday before Election Day.
The appeals court found otherwise, saying Husted reiterated established procedures and that Marbley expanded an earlier consent decree on provisional ballots beyond its original scope.
Still, the appeals panel cited flaws in the form designed by Husted to record identification information (filled out by voters), also noting that Ohio law requires poll workers to “record” the information. What isn’t clear, the appeals court held, is whether having voters check a box on Husted’s form violates the record-keeping requirement.
Such questions are matters of state law, the appeals court rightly concluded. These and other questions about voting in Ohio must be taken up in a careful, deliberative way by the state legislature, with the top priority to make access to the ballot as open and uncomplicated as possible. In this respect, Marbley is right: Voters who make a good-faith effort to provide identification information on a provisional ballot should not find themselves disenfranchised by ambiguities in Ohio law.