Husted Nov. 2 Directive on Provisional Ballots and Reactions +

DIRECTIVE 2012-54
November 2, 2012

To: All County Boards of Elections
      Members, Directors, and Deputy Directors

Re: Determining the Validity of Provisional Ballots and the Modified NEOCH Consent Decree

SUMMARY
The validity of certain provisional ballots has been the subject of ongoing litigation since 2006. Based on very recent court decisions, some provisional ballots cast at the wrong precinct but at either the correct polling place on Election Day or at the correct board of elections office1 on or after the 28th day before the election must be remade (consistent with Directive 2012-22) and counted for those races in which the voter was eligible to cast a ballot.

Because of these eve-of-election court decisions, I am required to issue these instructions at this late hour. In order to avoid confusion, Directives 2012-01 and Directive 2012-44 are hereby rescinded.

Additionally, to avoid voter confusion and conflicts with recent court decisions, boards of elections must not post the “Judge Carr Notice.” As such, Advisory 2011-04 is rescinded.

The Directive is issued to provide uniformity across Ohio’s 88 county boards of elections in reviewing provisional ballot affirmations on provisional ballot envelopes to determine the eligibility of the ballots to be counted by providing county boards of elections with a mandatory six-step procedure.

PROVISIONAL BALLOT AFFIRMATION ENVELOPES
All Boards must use SOS Form 12-B, originally provided with Directive 2012-01 and attached to this Directive, on provisional ballot affirmation envelopes for the November 2012 General Election.

All Boards must also provide precinct election officials SOS Form 12-D, originally provided with Directive 2012-44 and attached to this Directive, for the precinct election official to complete when a voter is in the wrong precinct of the correct multiple-precinct polling place and the voter insists on casting a provisional ballot in the wrong precinct.

GENERAL REMINDERS ON PROCESSING PROVISIONAL BALLOTS

• Boards of elections may begin examining provisional ballot envelopes the day after the election.2

• The board of elections must adopt a provisional ballot policy, under which it may designate bipartisan teams to examine and categorize provisional ballot envelopes; however, only the board members themselves can determine the validity of each provisional ballot.

• The board members themselves determine the validity of each provisional ballot by majority vote at a properly noticed public meeting.

• A board of elections must not start counting ANY provisional ballot until AFTER the board members themselves have determined the validity or invalidity of ALL provisional ballots cast in that county.3

• Boards must complete the examination and counting of provisional ballots no later than the twenty-first day after the election.4

DETERMINING THE VALIDITY OF PROVISIONAL BALLOTS

Step 1: Determine whether the affirmation statement on the provisional ballot envelope contains both the voter’s printed name and either a valid signature or a note by the precinct election official on the signature line indicating that the voter declined to execute an affirmation.

• If the affirmation statement contains both the voter’s printed name and either a valid signature or a note on the signature line that the voter declined to sign, proceed to Step 2.

• If the affirmation statement does not contain both the voter’s printed name and either a valid signature or declination, then the Board must reject the provisional ballot.5

The presence of the voter’s printed name and signature is a requirement of state law, affirmed by the Ohio Supreme Court in Skaggs v Brunner, and the Sixth Circuit Court of Appeals in SEIU v. Husted.

Step 2: Determine whether the provisional voter provided at least one of the following: the last four digits of the voter’s social security number, the voter’s driver’s license number, OR a notation that the voter provided another form of acceptable identification.

• If the voter provided one of the acceptable forms of identification proceed to Step 3.

• If the voter did not provide one of the acceptable forms of identification but completed a Form 10-T, proceed to Step 3.

• If the voter did not provide identification on the provisional ballot affirmation but returned to board of elections within ten days after the election6 and provided identification or signed the SOS Form 10-T proceed to Step 3.

• If the voter did not provide identification on the provisional ballot affirmation, did not complete SOS Form 10-T , and did not return to the Board within the ten days after the election to remedy the missing item, the Board must reject the provisional ballot.

Step 3: Determine whether the Board can verify the identity of the voter based on the voter’s printed name, signature, and identification information provided on the provisional ballot affirmation or provided by the voter within the ten day period.

• If the Board can verify the identity of the voter based upon the information provided on the provisional ballot affirmation and/or provided by the voter within ten days of the election, proceed to Step 4.

• If the Board cannot verify the identity of the voter based upon the information provided on the provisional ballot affirmation and/or the information provided by the voter within ten days of the election, the Board must reject the provisional ballot.7

Note that verification of identity includes at least one search of the county’s local voter registration database by entering as much or as little information as is available, and by using “wildcard” searches if available, and at least one search of all counties using the statewide voter registration database by entering as much or as little information as is available.

Unlike a voter registration card or absentee ballot application, date of birth and address are not required on a provisional ballot affirmation. Therefore, a provisional ballot affirmation that does not have the voter’s date of birth and/or address is valid so long as the board can verify the voter’s identity and registration status in the State of Ohio.

Step 4: Determine whether the voter is a registered voter anywhere in the State of Ohio at least 30 days before the election.

• If the voter was registered to vote anywhere in the State of Ohio at least 30 days before the election, proceed to Step 5.

• If the voter was not registered to vote anywhere in the State of Ohio at least 30 days before the election, then the Board must reject the provisional ballot.8

Step 5: Determine whether the voter is a resident of the county and precinct in which the voter offers to vote.9

• If the voter is a resident of the county and precinct in which the provisional ballot was cast, then the Board must accept and count the provisional ballot;

• If the voter moved and provided a new address within the precinct on the back of the provisional ballot envelope, then the voter is considered a resident of the new county and precinct and the Board must accept and count the provisional ballot;

• If the voter cast the provisional ballot in the wrong precinct, but in the correct polling place, including the board of elections office, and a precinct election official did not complete and attach SOS Form 12-D to the provisional ballot envelope, the Board
must remake and count the provisional ballot for only those contests for which the voter was otherwise eligible to vote.

• If the voter cast the provisional ballot in the wrong precinct, but in the correct polling place, including the board of elections office, and a precinct election official did complete and attach SOS Form 12-D, but the Board verified that the precinct to which the poll worker directed the voter was the incorrect precinct, the Board must remake and count the provisional ballot for only those contests for which the voter was otherwise eligible to vote.

• If the voter cast the provisional ballot in the wrong precinct, but correct polling place, including the board of elections office, and (1) a precinct election official completed SOS Form 12-D and (2) the Board verified that the precinct to which the precinct
election official directed the voter was the correct precinct, the Board must reject the provisional ballot.

• If the voter cast the provisional ballot in the wrong precinct and wrong polling place the Board must reject the provisional ballot.

Step 6: If you have completed Steps 1 through 5 and determined that the provisional ballot should be rejected, consider the following:

Under the consent decree issued by the federal court in Northeast Ohio Coalition for the Homeless v. Brunner, S.D. Ohio No. 2:06-cv-896, ("NEOCH"), boards of elections may not reject provisional ballots cast by voters who use only the last four digits of their Social Security number as identification for the following reason:

The poll worker did not complete or properly complete and/or sign the provisional ballot application witness line and/or the provisional ballot affirmation form, except for reasons permitted by the governing statutes.

As noted on SOS Form 12-B, failure by the precinct election official to complete the “Precinct Election Official Info” section will not result in the provisional ballot being rejected.

CONSENT DECREE AS MODIFIED

Boards of elections are instructed to comply with the injunctive relief cited below as provided in the April 19, 2010 Consent Decree and modified by the Court on October 26, 2012 and November 2, 2012.

Additionally, each board of elections must post a notice that contains the text of the injunctive relief granted in a conspicuous place in every location in which provisional ballots are processed after an election. A copy of the notice to be posted is attached.
The injunctive relief in the Consent Decree as modified is as follows:

III. GENERAL INJUNCTIVE RELIEF.

4. The Court ADOPTS and annexes hereafter Directive 2008-80 as an Order of this Court.

5. Defendant Secretary of State, her agents, employees and representatives will instruct Ohio’s county Boards of Elections to adhere to the following rules regarding the casting and counting of provisional ballots for persons without identification other than a social
security number:

a. Boards of Elections must count the provisional ballot cast by a voter using only the last four digits of his or her social security number as identification if all of the following conditions are met:

i. The individual who cast the provisional ballot is registered to vote;

ii. The individual is eligible to cast a ballot in the precinct and for the election in which the individual cast the provisional ballot;

iii. The provisional ballot affirmation includes a statement that the individual is registered to vote in the precinct in which the provisional ballot was cast and a statement that the individual is eligible to vote in the election in which the provisional ballot was cast;

iv. The individual’s name and signature appear in the correct place on the provisional ballot affirmation form, unless the voter declined to execute the affirmation and the poll workers complied with their statutory duties under R.C. 3505.182 and R.C. 3505.181(B)(6) when a voter declines to execute the affirmation;

v. The signature of the voter substantially conforms to the signature contained in the Board of Election’s records for that voter;

vi. The provisional ballot affirmation includes the last four digits of that voter’s social security number, which is not found to be invalid;

vii. The individual’s right to vote was not successfully challenged;

viii. The individual did not already cast a ballot for the election in which the individual cast the provisional ballot; and

ix. Pursuant to R.C. 3505.183(B)(2), the Board of Elections determines that, in addition to the information included on the affirmation, there is no additional information for determining ballot validity provided by the provisional voter or to the Board of Elections during the ten days after the day of the election that casts doubt on the validity of the ballot or the individual’s eligibility to vote.

b. Boards of Elections may not reject a provisional ballot cast by a voter, who uses only the last four digits of his or her social security number as identification, for any of the following reasons:

i. The voter provided the last four digits of a Social Security Number but did not provide a current driver’s license, state issued identification, or other document which serves as identification under Ohio law;

ii. The voter did not provide a date of birth;

iii. The voter did not provide an address that is tied to a house, apartment or other dwelling provided that the voter indicated that he or she resides at a non-building location, including but not limited to a street corner, alley or highway overpass located in the precinct in which the voter seeks to cast a ballot and that the non-building location qualifies as the individual’s voting residence under R.C. 3503.02;

iv. The voter indicated that he or she is homeless;

v. In light of the injunction issued in SEIU Local 1 v. Husted, Section III (5) (b) (v) of the April 19, 2010 Consent Decree has been removed for the purposes of the November 6, 2012 election. County boards of election are ORDERED to comply with the Directives that govern the counting of provisional ballots cast in the correct polling location, but in the wrong precinct;

vi. The Court has removed this provision of the Consent Decree. See NEOCH v. Husted First Order issued October 26, 2012; or

vii. The poll worker did not complete or properly complete and/or sign the provisional ballot application witness line and/or the provisional ballot affirmation form, except for reasons permitted by the governing statutes.

c. Boards of Elections must observe the following rules regarding the delegation of processing provisional ballots, and determining their validity, to board staff:

i. Ultimately, the members of Boards of Elections must determine the validity of all votes cast in an election and must certify the results of all elections. However, nothing in Ohio law requires that the members of a Board of Elections must personally complete all tasks associated with preparing for that certification.

ii. Thus, Boards of Elections may, under a policy adopted by the Board, delegate the processing and some aspects of counting provisional ballots to board staff. Such processing must be done in bipartisan teams.

iii. If a Board of Elections delegates the processing of provisional ballots, it must first adopt a policy setting forth procedures for the processing of provisional ballots. Under that policy, board staff responsible for processing provisional ballots must make a recommendation to the Board as to the eligibility of each provisional ballot cast in the county, either on an individual basis, or as to groups or categories of similarly situated provisional ballots.

iv. Ultimately, the members of Board of Elections must determine the eligibility or ineligibility of all provisional ballots cast within the county in accordance with Ohio law. Boards may not delegate this task.

v. Each Board of Elections must then cause the ballots to be counted by board staff, and must include the tabulation of that count in its official canvass of the election results and, to the extent required, its certification of the election results to the Secretary of State.

If you have any questions concerning the this Directive or the examination and evaluation of provisional ballots, please contact the Secretary of State’s elections counsel assigned to your county at (614) 466-2585.

Sincerely,

Jon Husted

1 Throughout this Directive, when referring to the “board of elections office” this also includes another site designated by the board to hold in-person absentee voting. R.C. 3501.11(Z)
2 R.C. 3505.183(E)(1)
3 R.C. 3505.183(D)
4 R.C. 3505.32(A)
5 R.C. 3505.183(B)(4)(a)(iii)
6 The only four reasons to require a provisional voter to provide additional information to the board of elections during the ten days after the day of an election are:
• The voter possesses a social security number or proper identification, but was unable to provide it to the precinct election official; R.C. 3505.181(A)(3)
• The voter possesses a social security number or proper identification, but declined to provide it to the precinct election official; R.C. 3505.181 (A)(13)
• The voter does not possess a social security number or proper identification, and refused to sign a SOS Form 10-T; R.C. 3505.181(A)(12)
• The voter was challenged at the polling place and his or her eligibility to vote could not be determined by the precinct election officials; R.C. 3505.181(A)(7)
7 R.C. 3505.183(B)(4)(b)(i); State ex rel. Skaggs v. Brunner (2008), 120 Ohio St. 3d 506.
8 Ohio Constitution Article V, Section 1; R.C. 3505.183(B)(4)(a)(i); R.C. 3505.183(B)(4)(a)(iv); R.C. 3505.183(B)(4)(a)(vi)
9 R.C. 3503.01(A)
PRESS RELEASE from fitzgibbonmedia.com

FOR IMMEDIATE RELEASE:
Sunday, 04 November 2012

CONTACT:
Brett Abrams

Citizens Outraged By Ohio Sec. Of State Jon Husted’s Last Minute Attempt To Disenfranchise Unsuspecting Voters

Directive Issued Friday Night Violates Ohio Law, Recent Court Decisions and Puts Hundreds of Thousands of Provisional Ballots in Jeopardy

** http://signon.org/sign/ohio-secretary-of-state **


OHIO - In a last minute directive issued Friday night, Ohio republican Secretary of State Jon Husted changed requirements for submitting provisional ballots on Election Day.   The directive includes a form which shifts the burden to the voter to correctly record the type  of ID they provided to election officials.  This new directive - a clear violation of Ohio law - could confuse hundreds of thousands of voters in Ohio who are used to election officials recording this information.  Putting even more voters in risk of not being counted, Husted has instructed election officials to not count ballots where that part of the form has not been correctly filled out by a voter.

FOR MORE INFORMATION: http://thinkprogress.org/election/2012/11/03/1134981/last-minute-ohio-directive-could-trash-legal-votes-and-swing-the-election/

In response to this blatant violation of Ohio law, Ohio State Representative Mike Foley started a new petition on SignOn.org demanding Secretary of State Jon Husted reverse his last minute directive and stop this efforts to disenfranchise Ohio voters.  Representative Foley (D-Cleveland) has served the 14th District since he was appointed to represent constituents in Brook Park, Parma Heights, and Cleveland Wards 19, 20 and 21 in May of 2006.

VIEW THE PETITION HERE: http://signon.org/sign/ohio-secretary-of-state

For more information, or interviews with Rep. Mike Foley please contact Brett Abrams at 516-841-1105 or by email at brett@fitzgibbonmedia.com.


# # # # #

SignOn.org is the non-profit, online campaign platform from MoveOn.org that lets anyone start and run their own online campaigns.
PRESS RELEASE from Ohio Democratic Party
November 13, 2012
Federal Judge Finds Husted Last Minute Provisional Ballot Change To Violate Ohio Law, U.S. Constitution
As Governor Kasich’s Legislative Supermajority Hangs In Balance With Two Recounts, Federal Judge Rules Against Husted Plot to Toss Out Provisional Ballots

COLUMBUS – Today, a Federal District Court Judge ruled – yet again – against Secretary of State Jon Husted and his eleventh-hour move that shifted responsibility from properly filling out portions of a provisional ballot from poll workers to voters. Judge Algenon Marbley wrote that Husted’s move “to flaunt state law in arbitrarily reassigning a poll worker’s statutory duty to a voter, with the result being disenfranchisement of the voter, is ‘fundamentally unfair and constitutionally impermissible.’”

The practical effect of this ruling is that some provisional ballots that may have been disqualified due to poll worker error will now be counted. This ruling could be especially important in two legislative races that have yet to be decided that will determine whether Governor John Kasich will have a supermajority in the Statehouse. If Democrats win one of these races, it will be the first time in Ohio’s history where the minority party held or gained seats following redistricting. A Democratic victory would also block Kasich from gaining the power to place issues such as “right to work” or “personhood” directly on the ballot through the legislature, circumventing the petition process.

In response to Husted’s latest Court loss, and vow to appeal, Ohio Democratic Chairman Chris Redfern released the following statement:

“Secretary of State Husted, Governor Kasich, and Republicans have not fared well this year in their effort at every turn to disenfranchise Ohio voters. After wasting nearly $100,000 in taxpayer dollars appealing his many court, Husted should ask himself if perhaps the people of Ohio might not be better served if he just let this loss go, and stopped trying to strip people of their right to have their vote counted.

“This court decision is a win for the people of Ohio, and it will assist our recount efforts in the two undecided legislative races to ensure that Kasich does not get a supermajority in the Statehouse that would allow him to place ‘right to work’ or ‘personhood’ on the ballot.”