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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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Comment Preferences

  •  It was a complicated decision, but the court (2+ / 0-)
    Recommended by:
    Rich in PA, bushondrugs

    seemed to follow the clear text of the law.  Based on a scan of the decision, the law requires that a voter sign and write her name.  If she didn't, the vote is invalidated.  Kinda silly, but that's the law.

    Isn't that the issue?

    We are building a team that is continuously being built. - Sarah Palin

    by burrow owl on Fri Dec 05, 2008 at 05:51:02 PM PST

    •  Brunner's directives following Federal Court (2+ / 0-)
      Recommended by:
      burrow owl, Ahianne

      At issue are the Brunner's Directives 2008-101 and 2008-103, which lay out the guidelines for counting provisional ballots. 2008-101 is a lengthy set of instructions, which was later adopted as a part of a Federal District Court order. The same court later handed down an order saying that a vote must be counted if the missing name and signature were due to poll worker error, and Brunner adopted this into 2008-103.

      So Brunner's contention is that she was following Federal Court in the directives she issued, one of which was that votes cannot be denied due to poll worker error. Provisional ballots are filled out on the spot at the poll, and neither she nor the court wanted voters to be penalized for making a technical error in doing so, especially if they thought they were following proper instructions.

      Another issue is the matter of names and signatures being somewhere on the envelope, but not in the place on the paper meant for the affirmation. This was apparently not one of Brunner's directives, but rather an instruction sent by her office back in March. It seems to me that if a vote is rejected even though the name and signature is there, just not in the right space, then it really is a "hyper-sensitive" interpretation of the law. After all, the courts are under an obligation to rule in cases of doubt in favor of greater voter participation (as the Ohio Supremes acknowledge in their ruling).

      Absolute power corrupts absolutely.

      by Buckeye Hamburger on Fri Dec 05, 2008 at 06:28:30 PM PST

      [ Parent ]

  •  That's why we say "the letter of the law" (1+ / 0-)
    Recommended by:
    burrow owl

    If you're talking about an informal expression of a preference, legal formalities don't apply.  But when you're talking about the formal expression that is voting, it's not outlandish to require the formalities.  Brunner should have been more concerned, as Secretary of State, to reform the format of the provisional ballot in order to avoid these situations.  The situations sucks, especially because it's obvious the state judges' motivations were political, but when you oversee a system with stupid hoops to jump through, you can't get all indignant when people are disqualified for failure to jump through the hoops.

    -5.38/-3.74 I've suffered for my country. Now it's your turn! --John McCain with apologies to Monty Python's "Protest Song"

    by Rich in PA on Fri Dec 05, 2008 at 05:52:35 PM PST

    •  Provisional ballots and poll worker error (0+ / 0-)

      Brunner should have been more concerned, as Secretary of State, to reform the format of the provisional ballot in order to avoid these situations.

      Evidently (this is stated somewhere in one of the court rulings) the Secretary of State's office suggests a design for the provisional ballots, but the counties are at liberty to use their own. I don't whether she would have been able to require it, but apparently Madison and Union county followed the suggestion, and Franklin county used its own design.

      ... you can't get all indignant when people are disqualified for failure to jump through the hoops.

      As I mentioned above, Brunner was following a federal court order with her directive not to deny a vote if someone "failed to jump through the hoops" due to a poll worker's error. And I am indeed indignant that this ruling has contradicted that. If a voter made a good-faith effort, by doing what the poll official told them to do, then they should not be shut out.

      And I am also indignant about the part about writing down the name and signature, but just not in the right place on the form. That's a preposterous hoop to be holding up; no one should lose their vote for something like that.

      Absolute power corrupts absolutely.

      by Buckeye Hamburger on Fri Dec 05, 2008 at 06:41:33 PM PST

      [ Parent ]

      •  All I'm saying is that this was a pre-announced.. (1+ / 0-)
        Recommended by:
        Buckeye Hamburger

        ...train wreck.  There was zero possibility that these ballots would be treated any other way--as you note, the state court has a certain partisan composition. What's most surprising to me is that Obama wasn't lawyered-up enough in a key county of a key state to get this hopeless form changed prior to election day...or barring that, why his campaign (on behalf of all Democratic candidates) didn't instruct Democratic observers in the proper completion of the form.

        -5.38/-3.74 I've suffered for my country. Now it's your turn! --John McCain with apologies to Monty Python's "Protest Song"

        by Rich in PA on Fri Dec 05, 2008 at 06:51:05 PM PST

        [ Parent ]

        •  It looks like Brunner was preparing for this (0+ / 0-)

          By incorporating Federal District Court orders into her directives to the county boards of election (quite explicitly in this one), Brunner was obviously making sure that she'd have the federal court on her side. As you note, the Ohio Supreme Court presents an obvious partisan problem, so evidently her strategy was getting the federal courts to trump the state courts. It worked, at first, because that was the very federal court that initally ruled in her favor on this, before the appeals court turned it over to the state.

          So I wouldn't say there was zero possibility of success, and there still isn't. As I mentioned, the US Supreme Court has already overruled the Ohio Supreme Court in her favor before. Getting the feds on her side may have been a clever move.

          BTW, I would have been surprised if Obama's people had gone to the trouble and expense to lawyer up for this. Kilroy and Stivers are pretty well lawyered-up as it is.

          Absolute power corrupts absolutely.

          by Buckeye Hamburger on Fri Dec 05, 2008 at 07:05:04 PM PST

          [ Parent ]

          •  There supposedly an Ohio law (1+ / 0-)
            Recommended by:
            Buckeye Hamburger

            ...that all provisionals must be opened and counted as a batch. So if they begin counting the according-to-Hoyle ballots tomorrow (I hope they're working the weekend), won't there be a problem appealing these 1,000 ballots at a later date?

            •  Dunno (0+ / 0-)

              Dunno about that law. Sometimes the SCOTUS will make a decision in a big hurry, in a time-critical situation, and that has included election deadlines. I remember that they made a couple of quick decisions during the Bush v. Gore fiasco -- usually they take the better part of a year to make up their minds.

              But would they do that, and roust up Scalia out of his crypt this weekend, to decide about 1,000 votes in a House election in Ohio? Hm.

              I'm beginning to see what you mean about the Ohio Supremes stringing this one along.

              Absolute power corrupts absolutely.

              by Buckeye Hamburger on Fri Dec 05, 2008 at 07:25:40 PM PST

              [ Parent ]

  •  And people are complaining about the MN Recount (1+ / 0-)
    Recommended by:
    Buckeye Hamburger

    OH-15 has a lot fewer votes than MN and they still have 37,000 to count.

    Thanks for the update.

  •  The Ohio SC (1+ / 0-)
    Recommended by:
    Buckeye Hamburger

    ...waited four days to make this decision, delaying the vote as long as possible. They completely marched to the tune of Matt Damschroder, Republican head of the Franklin County BoE. He said in an affadavit in federal court weeks ago, what the hell, might as well tie up the vote in court until Dec. 5, because even at that date if the Board hurries up and counts the provisionals in two days, they'll barely squeak through the certification deadline.

    So what does the Ohio SC do after getting the briefs on Monday? Drag their feet until Friday, Dec. 5, of course. Now the counting is rush rush. Hopefully Kilroy will be watching them like a hawk.

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