[Image courtesy of demonicart]
Last Thursday, a federal appeals court issued its opinion in the dispute over provisional ballots in the Buckeye State. In short, the appeals court agreed with the trial court judge that provisional ballots cast in the correct polling place but in the wrong precinct (normally invalid under Ohio law) would nonetheless be counted when the problem was the result of poll worker error.
Whether or not this case reaches the U.S. Supreme Court - like the early voting dispute between the Obama campaign and the Secretary of State - it still raises two important "big-little" issues for election officials that will be important on Election Day 2012 and beyond.
First is the observation made by ElectionLawBlog's Rick Hasen in response to a comment on his post about the Ohio case: "many wrongly cast provisional ballots are not covered by this order, because this covers only those cast at the right polling location." In other words, the latest opinion would not rescue ballots where poll worker error resulted in a voter being misdirected to the wrong polling location. According to the Brennan Center, only about 1 in 3 "wrong precinct" ballots in Cuyhaoga (Cleveland) and Hamilton (Cincinnati) were "right church, wrong pew" votes cast at the correct polling location in 2008. The remaining "wrong church" ballots are not covered by the latest opinion though the court did suggest that it would consider pleadings on that question. In an odd twist, the continued consolidation of precincts in Ohio - often the source of concern given the potential for confusion for voters and poll workers - could actually work in voters' favor by increasing the pool of provisional ballots covered by the latest opinion.
The second issue - more big than little, in my opinion - is the role technology can and should play in the process of sending voters to the "right church" in the first place. Ohio has an official polling place locator but it also provides official data to Pew's Voting Information Project which in turn is used to power "voter-friendly" tools produced by partners like Microsoft , Google and AT&T to guide voters to the proper location and give them information about how to cast a timely and valid ballot. Such efforts are no longer feel good, "nice to do" projects for election officials; they are mission-critical "must do" services on which every voter should be able to rely. Even better, such services would reduce poll worker error and minimize the number of misdirected voters on Election Day.
In other words, even as the courts work to minimize the impact of "right church, wrong pew" provisional ballots, improving how and where voters get their information can help eliminate such ballots in the first place. This will be even more important as states like Ohio continue to consolidate precincts and poling places in the years ahead.