There's still a House election left to be settled in Ohio's Fifteenth District, and Democrat Mary Jo Kilroy suffered a setback today when the Ohio Supreme Court, controlled entirely by Republicans, ruled to throw out 1,000 provisional ballots. Ohio Secretary of State Jennifer Brunner said in a statement that these voters were "clearly eligible and qualified to vote", and has also said that suit raised a "hyper-technical interpretation" of Ohio voting law.

There are still over 37,000 votes left to count in bluish Franklin County over the next two or three days, and with Kilroy currently at 594 votes behind, it might be enough for a win. Nevertheless, those 1,000 voters deserve to have their voices heard.

In the final House election to be decided this year, Mary Jo Kilroy is running against Republican Steve Stivers and a couple of third-party candidates to replace incumbent Republican Deborah Pryce, who did not run for re-election. Kilroy ran against Pryce in 2006, and the election had a similarly close outcome, with Kilroy coming up short by about 1,000 votes out of about 220,000 cast. This year, unofficial results on Election Day put Stivers ahead by 146 votes out of about 260,000 cast. The counting since November 4th has totaled up provisional ballots, and late-arriving absentee ballots, and has been completed in deep-red rural Madison and Union Counties. The rest are yet to be totaled in Franklin County, which includes about half of Columbus, including the student vote at Ohio State University and a number of more liberal parts of the city. Kilroy's prospects are fairly good -- in 2006, she was behind by about 3,500 votes on Election Night, and ended up behind by only about 1,000 after the absentee and provisional ballots were counted. That pickup wasn't enough two years ago, but it would put her over the top this time.

If the final tally is closer than 0.5% (about 1,500 votes), then there is a mandatory re-count, which takes another couple of weeks. It's likely to happen this time, as it did in 2006, so we probably won't have a winner until around Christmas, just a few weeks before the new Congress is sworn in.

At issue today were 1,000 disputed provisional ballots from Franklin County. A Federal District Court has already ruled that they should be counted, but then the Sixth US Court of Appeals overturned the ruling on strictly jurisdictional grounds, saying that the matter is an issue of state rather than federal law, without ruling on the merits. Hence the case went to the Ohio Supremes.

The seven justices of the SCOO are all Republicans, each and every one of them. They ruled today that the provisional ballots must be rejected if they do not contain both the voter's name and signature in the affirmation, and that Brunner violated her discretion by advising Boards of Election that the votes could be counted if, for example, the name and signature did not appear in the correct place (not in the affirmation), of if the name was missing due to improper instructions by a poll worker, but the voter could be validated as an eligible elector.

Before this ruling, Brunner stated:

Prior to the November 4, 2008, general election, the Secretary of State’s office issued clear, consistent, statewide guidance regarding the casting and counting of provisional ballots.  For the ballots at issue, there is no evidence or allegation of fraud.  Each ballot was cast by a registered, eligible voter who provided a signature in a poll book before they cast a provisional ballot.

In her statement today, Brunner noted that she:

... issued clear pre-election directives as part of her efforts to defend Ohio’s provisional ballot statutes in a federal court case.  Those directives were subsequently incorporated into a federal court order. Nevertheless, the Ohio Supreme Court ruled against counting these provisional ballots.

The reference to federal courts is probably a setup for her next step -- taking the case to the Supreme Court of the United States. In a prior case in which the GOP alleged voter fraud on November 4th due to clerical errors in the voter registration database, the SCOTUS sided with Brunner and turned down the Republicans' attempt to get a temprorary restraining order. Brunner is a tough and determined lady, and she fights hard; I wouldn't be surprised to see her take this one to SCOTUS as well.

Chris Redfern, head of the Ohio Democratic Party, said:

I am disappointed in the partisan spirit of this ruling.  The all-Republican Ohio Supreme Court has successfully disenfranchised more than 1,000 eligible, qualified Ohio voters by applying hyper-technical standards to deny their right to vote.  When faced with comparable questions regarding the eligibility of McCain voters during the heat of the presidential campaign, the court took the opposite approach, bending over backwards to protect voters' rights.  There appears to be a double standard at work.

Mary Jo Kilroy had a terrific chat over on Firedoglake a couple of weeks ago, and she has a page up on ActBlue asking for donations to help her efforts during the final count and the likely recount. If she can pull it off, she'll be the first Democrat who's ever represented me in the House, ever in my life. We're this close, again, so let's hope she can overcome this setback make into the United States Congress.

Originally posted to Buckeye Hamburger on Fri Dec 05, 2008 at 05:22 PM PST.

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