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Judge: Ohio county must count ballots in 2010 race

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By JoANNE VIVIANO, The Associated Press Updated 6:46 PM Wednesday, February 8, 2012

COLUMBUS, Ohio — Officials must count disputed provisional ballots that Republicans want tossed out in a 2010 juvenile court judge election separated by 23 votes, a federal judge in Cincinnati ruled Wednesday.

U.S. District Judge Susan Dlott ordered the Hamilton County Board of Elections to count provisional ballots cast in the right polling location but the wrong precinct because of poll worker error. During the election, multiple precincts could be assigned to a single polling place.

Elections Director Sally Krisel had no comment when asked how many ballots would be affected. A lawyer for Democratic candidate Tracie Hunter, who sued in an effort to have the ballots counted, says the ruling means about 300 votes will be added to the tally. Hunter currently trails Republican John Williams in the race.

Provisional ballots, cast by those whose eligibility to vote is questioned at the polls, are counted once it's determined they're valid. Dlott said the Hamilton County board "violated provisional voters' right to equal protection under the law" when considering the location where such ballots were cast in some instances but not others.

She also criticized a state law that prevents the counting of certain provisional ballots, but said she could not order a remedy because the lawsuit did not challenge the constitutionality of Ohio's election statutes.

"Ohio's precinct-based voting system that delegates to poll workers the duty to ensure that voters are directed to the correct precinct but which provides that provisional ballots cast in the wrong precinct shall not be counted under any circumstance, even where the ballot is miscast due to poll-worker error, is fundamentally unfair and abrogates the Fourteenth Amendment's guarantee of due process of law," she said.

In a statement released by her attorney, Jennifer Branch, Hunter said that the ruling protects the rights of voters and that it's fitting it came down in February, Black History Month. Many of the disputed ballots from the Nov. 2, 2010, election were in Democratic precincts with high populations of black voters.

"The right to vote is a major accomplishment of the civil rights struggle and we have solidified that right with this case," Hunter said.

Williams' lawyer, Joseph Parker, said they were still analyzing the 93-page decision and that Williams would decide their next step. Phone and email messages seeking comment from Williams were not returned Wednesday afternoon.

Branch had argued that the elections board created a double standard when it decided to count a few dozen provisional ballots, but not hundreds of others. She said all of the disputed ballots could have been miscast due to poll-worker errors and should be recounted.

Parker had argued that the board should not have even counted the provisional ballots it did because it broke Ohio's rule for counting such ballots. He has said the board only agreed to count provisional ballots cast at the Board of Elections, where he said poll worker error was the only likely reason for a miscast ballot.

The Ohio Supreme Court and Secretary of State Jon Husted had said the board was right to exclude those ballots under Ohio law.

A federal appeals court upheld an initial order by Dlott that provisional ballots improperly cast because of poll worker errors should be counted in the race. The decision by three judges of the 6th U.S. Circuit Court of Appeals blocked efforts by Hamilton County's election board and Ohio's secretary of state to have Williams declared the winner.

The U.S. Supreme Court declined to review that decision on appeal.

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Associated Press writer Lisa Cornwell in Cincinnati contributed to this report.

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February 08, 2012 11:43 PM EST

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