Court: Some Ohio ballots can be rejected

By ANDREW WELSH-HUGGINS Associated Press Published:

COLUMBUS -- Provisional ballots that lack the proper recording of voters' identification can be rejected when post-election vote counting begins Saturday, a federal appeals court ruled.

Friday's decision by the 6th U.S. Circuit Court of Appeals in Cincinnati affects fewer than 2,000 of the more than 200,000 provisional votes cast on Nov. 6.

It puts on hold a lower court's order that Ohio Secretary of State Jon Husted issue a new directive from his office regarding the ballots.

At issue is whether voters or poll workers should record the form of ID used on provisional ballots, such as military ID or a utility bill, when voters don't bring proper ID. An order by Husted the Friday before the election put the burden on voters, and the appeals court ruling upheld that.

Husted complained that a ruling by federal judge Algenon Marbley this week created new rules after the election but before ballots were counted.

The appeals court dismissed claims by voter advocates that Husted's pre-election order would cause permanent harm to voters lacking proper ID or was a dramatic policy shift.

Instead, the court called it "a modest clarification of a policy that was in place for months."

The court added: "Changing the rules by which votes are counted after they have already been cast compromises the interest of Ohio, the Secretary, and the general public in fair and orderly election procedures."

It was the second time in two weeks that the appeals court overruled Marbley to side with Husted on a provisional ballot dispute.

Husted in a statement called the ruling "vindication" and said Ohio ran a smooth, legal and constitutional election.

The court's decision overlooked all the evidence and promises "there will be legitimate provisional voters disenfranchised as a result," Cleveland attorney Subodh Chandra, one of several lawyers representing homeless voters, said in a statement.

Marbley told Husted earlier this week not to reject certain provisional ballots and to come up with a new directive regarding the ballots. Marbley said Husted's directive violated a previous court ruling and state law.

Provisional ballots include those cast when voters don't bring proper ID to the polls or cast them in the wrong precinct.

Voter advocates had claimed Husted's directive wrongly shifted the burden of recording the form of ID used on a provisional ballot from poll workers to voters. They said putting the requirement on voters at the last minute increases the likelihood that ballots could be wrongly rejected.

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Andrew Welsh-Huggins can be reached at http://twitter.com/awhcolumbus.

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