The Atlantic had a fantastic article about the court hearing this week regarding provisional voting in Ohio. To catch you up, the Secretary of State issued a directive on Friday night before the Tuesday election changing the way that provisional ballots are completed by voters in order to avoid the poll workers taking responsibility for the ballot. The directive said that provisional ballots would not be counted if they are not filled out correctly by the voter. It is our contention and our lawyers argued in court that the law is clear that the poll worker completes the provisional ballot affirmation form--not the voter. We believe that this was a way for the Secretary of State to undermine our agreement and thus undermine the will of the court. There would be no question about poll worker error if the voter completed the form instead.
District Court Judge Algenon Marbley was not happy and as many media outlets reported he raised his voice a number of times. There are approximately 200,000 provisional ballots cast in the last election in Ohio and those are going to be counted in the next week. The biggest issue here is that in court earlier this year, the lawyers for the state said that the poll worker completes the affirmation so it would not be necessary to develop provisions for if the voter messes up. Arnold Epstein argued the case for the State of Ohio, and was asked some tough questions about the directive. Judge Algenon said:
What concerned me about the 2012-54 directive is that it was filed on a Friday night at 7 p.m. The first thought that came to mind was democracy dies in the dark. So, when you do things like that that seeks to avoid transparency, it appears, then that gives me great pause but even greater concern.
The judge mentioned "Democracy dies in the dark" a number of times, and asked for clarity on who exactly wrote the offensive directive. Judge Marbley wanted to hear the exact language of the law and asked that the State attorney to identify where it says that a voter must complete the affirmation and then if they do not complete it properly the ballot is thrown out. As the Atlantic pointed out, the Judge was very close to ordering Husted to appear to answer how this directive was issued and why.
Jon Husted also appeared on Thursday to give his assessment of the election. Despite the extreme partisanship he has pushed over the last year, he urged "bipartisan solutions" to early voting and provisional ballots. Husted said that there were only minor glitches on election day, but he did not address the long lines. Then during this discussion of "bipartisanship," he threw a grenade into the debate by suggesting moving to a proportional division of the electoral college votes. This is a horrible idea, and should not even be given a public hearing. One party has gerrymandered the Congressional districts and wants the votes for Presidential election to follow the popular vote in each district. We believe that the legislature should instead pledge all the Presidential electors to the individual who wins the national popular vote, and not some rigged system influenced by one party or the other.
Judge Marbley is supposed to issue his ruling on November 12 or 13th.