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Election Litigation: Provisional Ballots

Releasing Names of Provisional Voters
Mah v. Board of County Commissioners (J. Thomas Marten, D. Kan. 5:12-cv-4148)
Three days after the November 2012 general election, an incumbent candidate for a state house of representatives filed a petition in state court seeking an order that a county provide the candidate with the names and addresses of all persons who cast provisional ballots in the county. The defendant board of commissioners removed the action to federal court after a state judge granted the candidate the order she requested. The state’s secretary of state sought a federal restraining order against the state court order. The board, however, complied with the state court order by its deadline. The federal judge ordered the candidate not to distribute the list or contact the voters pending further ruling. Subsequently, the judge ruled that the Help America Vote Act “protects ‘access to information about an individual provisional ballot.’ It does not protect information ‘about the individual casting the ballot.’”
Topics: Provisional ballots; Help America Vote Act (HAVA); removal.

Provisional Ballots Cast in the Wrong Precinct Because of Poll-Worker Error
Hunter v. Hamilton County Board of Elections (Susan J. Dlott, S.D. Ohio 1:10-cv-820)
In the 2010 election for Hamilton County Juvenile Court Judge, 23 votes separated the two candidates with the validity of many provisional ballots unresolved. The trailing candidate filed a federal action to expand the number of provisional ballots deemed valid when she learned that some, but not all, cast in the wrong precinct would be counted if they were cast in the wrong precinct because of poll-worker error. The district court ordered an investigation into which ballots were cast in the wrong precinct because of erroneous instructions from poll workers. A circuit judge stayed the order, but a full panel dissolved the stay one week later. Litigation continued for 18 months, and then the plaintiff joined the juvenile court bench.
Topics: Provisional ballots; election errors; enjoining certification; interlocutory appeal; equal protection; matters for state courts.

Validity Requirements for Provisional Ballots
Ohio ex rel. Skaggs v. Brunner (Algenon L. Marbley, S.D. Ohio 2:08-cv-1077)
Ohio’s secretary of state removed a mandamus action from Ohio’s supreme court concerning validity requirements for provisional ballots. The case was assigned to a judge who was already presiding over related cases. The judge granted summary judgment to the state, but the court of appeals ordered the matter referred to the state court, which held the secretary of state’s validity requirements to be too lax. The court of appeals affirmed the district judge’s denial of attorney fees.
Topics: Matters for state courts; provisional ballots; removal; attorney fees.

Provisional Ballots for a Judicial Election in Texas
Texas Democratic Party v. Bettencourt (Gray H. Miller, S.D. Tex. 4:08-cv-3332)
Six days after the 2008 general election, the Democratic candidate for a state judgeship was a few hundred votes behind his opponent. The Democratic candidate filed a federal complaint seeking prompt resolution of several thousand provisional and absentee ballots. Two days later, the district court denied the plaintiff immediate relief. An amended complaint more generally challenging county procedures for voter registration and provisional ballots resulted in a 2012 settlement.
Topics: Provisional ballots; absentee ballots.

Preclearance of a State Supreme Court Decision That Provisional Ballots Have to Be Cast in the Correct Precinct
Kindley v. Bartlett (Terrence W. Boyle, E.D.N.C. 5:05-cv-177)
A federal class-action complaint challenged a state policy against counting provisional ballots cast in the wrong precinct, a policy recently allowed by the state’s supreme court. The federal district court judge denied injunctive relief on a finding that the state was not attempting to enforce the policy in advance of preclearance pursuant to section 5 of the Voting Rights Act.
Topics: Provisional ballots; section 5 preclearance; matters for state courts; class action.

Provisional Ballot Procedures in Ohio
Schering v. Blackwell (Michael H. Watson, S.D. Ohio 1:04-cv-755)
On election day 2004, a voter filed a federal action challenging a directive by Ohio’s secretary of state on the handling of provisional ballots. After an informal status conference, the plaintiff decided not to pursue immediate relief.
Topic: Provisional ballots.

Casting Provisional Ballots in the Wrong Precinct in Florida
Florida Democratic Party v. Hood (Robert L. Hinkle, N.D. Fla. 4:04-cv-395)
Florida’s Democratic Party sought to enforce the Help America Vote Act (HAVA) by enjoining Florida from rejecting provisional ballots cast in the wrong precinct in the 2004 general election. The case was filed on September 29, and the court issued a preliminary injunction on October 21. The court ruled that HAVA does not require the counting of provisional ballots cast in the wrong precinct, but HAVA does require that the provisional ballots be provisionally accepted.
Topics: Help America Vote Act (HAVA); provisional ballots.

Casting Provisional Ballots in the Wrong Precinct in Michigan
Bay County Democratic Party v. Land (1:04-cv-10257) and Michigan State Conference of NAACP Branches v. Land (1:04-cv-10267) (David M. Lawson, E.D. Mich.)
Local branches of the Democratic Party filed a federal complaint to challenge a state directive that provisional ballots would only be counted if cast in the correct precinct. Three days later, three organizations filed a similar action in the same district, and the court consolidated the two cases. The district court denied a motion by voters to intervene as defendants, but the court permitted their participation as amici curiae. The court denied the Justice Department’s motion for a short delay so that it could file an amicus brief. Three weeks after the first case was filed, the court determined that provisional ballots must be counted so long as they are cast in the correct city, village, or township. One week later, the court of appeals reversed in light of a contrary holding in another case issued on the same day.
Topics: Provisional ballots; Help America Vote Act (HAVA); 42 U.S.C. § 1983; intervention; case assignment.

Compliance with the Help America Vote Act for Provisional Ballots
Sandusky County Democratic Party v. Blackwell (3:04-cv-7582) and League of Women Voters of Ohio v. Blackwell (3:04-cv-7622) (James G. Carr, N.D. Ohio)
Five weeks before the 2004 general election, Ohio’s Democratic Party challenged directives by Ohio’s secretary of state on provisional ballots as in violation of the Help America Vote Act (HAVA). The court of appeals agreed with the district court that the state was out of compliance, but the court of appeals agreed with the secretary that provisional ballots should be cast in the correct precincts.
Topics: Help America Vote Act (HAVA); provisional ballots; voter identification; 42 U.S.C. § 1983; intervention; enforcing orders; presiding remotely; attorney fees.

Casting Provisional Ballots in the Right Place
Hawkins v. Blunt (Scott O. Wright and Richard E. Dorr, W.D. Mo. 2:04-cv-4177)
The case concerned whether voters could cast provisional ballots at polling places to which they were not assigned. Claims were mooted by the state’s agreeing to alter its procedures for counting provisional ballots.
Topics: Help America Vote Act (HAVA); provisional ballots; intervention; case assignment.