By Andrew Welsh-Huggins
COLUMBUS — Provisional ballots cast not just in the wrong precinct but in the wrong polling location altogether still must be counted, a federal judge ruled Wednesday in a lawsuit brought by voter advocates seeking to expand the counting of such ballots.
Columbus Judge Algenon Marbley said he based his decision on the rationale that such problems arise because of mistakes by poll workers.
“To disenfranchise citizens whose only error was to rely on poll worker error seems fundamentally unfair,” Marbley said in a decision he announced after hearing arguments from both sides.
Some polling places contain voting machines for several precincts. Voters in the right building but voting in the wrong precinct are labeled “right church, wrong pew.”
The ballots at issue in Wednesday’s ruling are dubbed “wrong church, wrong pew,” referring to both a mistaken polling place and a mistaken precinct. A attorney for a union that sued over the issue said as many as 8,000 voters cast such ballots in 2008.
“There was hard evidence in the record that there were individuals who were told by poll workers when they came to the right place to go to the wrong place,” attorney Stephen Brezon said after Marbley’s decision.
“There was one situation where a husband and wife were each told to go to different places even though they lived at the same address,” he said.
The state had opposed the expansion, saying it could create Election Day chaos because of new training requirements for poll workers.
“The more balls we throw in the air at poll workers on Tuesday morning, the greater the chance that things go wrong,” Richard Coglianese, an assistant Ohio attorney general, told Marbley during the hearing.
Marbley said it was Ohio’s responsibility to tell voters where to cast ballots because the state runs elections.
In a second decision Wednesday, Marbley sided with the state by agreeing to remove language from his own 2010 court order governing provisional ballots. The decision affected a portion of his ruling dealing with the types of identification voters are required to use when signing the ballots.
The language in question covers cases where voters use just the last four digits of their Social Security numbers for identification when signing a provisional ballot. The 2010 order prohibited such ballots from being discarded if they were incomplete because of poll worker error.
Voter advocates wanted that protection expanded to provisional ballots where other forms of ID were used. The state successfully argued to have the entire part of the 2010 order dealing with the incomplete forms removed.
The state said an appeals court decision earlier this month rendered that part of the 2010 order meaningless.
In that Oct. 11 decision, the 6th U.S. Circuit Court of Appeals said state law does not require poll workers to ensure that voters sign and print their names on provisional ballots. The court also noted the issue affected few voters: of 3.6 million votes cast in the state last November, 568 provisional ballots were rejected for signature errors.
Neither the state nor the voters’ advocates could say immediately whether they would appeal.