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Federal Judge Makes "Right Church, Wrong Pew" Permanent in Ohio

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[Image courtesy of latimes]

Yesterday, a federal judge in Ohio issued a permanent injunction in the ongoing dispute over how to handle so-called "right church, wrong pew" provisional ballots; i.e., ones that are cast in the correct polling place but in the wrong precinct because of polling place error. Cleveland.com has more:

The ruling by U.S. District Judge Algenon L. Marbley last week addresses voting errors at polling locations where more than one precinct conducts voting and a poll worker directed the voter to the wrong precinct. It makes permanent rules used in the 2012 election.

The decision drew praise from voting advocates who said to do otherwise would punish voters when poll workers mistakenly sent them to the wrong place to vote.

Misdirected voters could cast provisional ballots, but prior to the injunction their ballots could be rejected for being cast at the wrong precinct.

With this permanent injunction, provisional ballots cast in the wrong precinct will be counted unless a poll worker has determined the voter's correct precinct and directed the voter there, but the voter disregards that information and votes in the wrong precinct anyway, according to the ruling. [There were 37 such voters in November 2012, according to the state.]

"If the county board of elections cannot verify that the poll worker directed the voter to the correct precinct, the votes cast on the provisional ballot must be counted in all races and for all issues for which the voter would have been eligible to vote if he/she had cast the ballot in the correct precinct," Marbley wrote in his ruling.

What's especially noteworthy is both sides - plaintiffs and the Secretary of State - supported making the order permanent in the wake of an appeals court decision last fall:

Lawyers for [plaintiffs] last week sought to make permanent portions of a preliminary injunction that Marbley issued last August related to the provisional ballots. In their court response, [Secretary Jon] Husted's lawyers agreed.

After Marbley's ruling in August, the U.S. Sixth Circuit Court of Appeals subsequently upheld that preliminary injunction. Marbley cited that ruling in his decision last week.

The appellate panel found that summary rejection of "right polling location, wrong precinct" ballots would likely be equal protection and due process violations under the U.S. Constitution.

As a result, the court held, the state's treatment of provisional ballots prior to the injunction amounted to a substantial burden on the right to vote which it described as "fundamentally unfair."

Marbley's order resolves one issue but leaves another open for further debate - namely, how to handle voters who cast the ballot at the wrong polling place due to pollworker error. The state of Ohio has beefed up its information tools for voters to include a registration lookup and a polling place locator; what remains to be seen is whether these will be enough to ensure that voters and pollworkers know which "pew" to vote in on Election Day.

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