This just in from one of the lawyers in the case, Subodh Chandra. It’s a tad complicated. But newsworthy.
Here’s ThinkProgress’ explanation of the background of the case from a week ago:
In a last-minute directive that directly conflicts with Ohio law, [Ohio's Republican Secretary of State Jon] Husted ordered all voters who make a mistake when filling out a form accompanying provisional ballots to be disenfranchised. As the majority of provisional ballots are cast in Ohio’s five largest counties — all of which favor Democrats — and because low-income and transient voters are also more likely to vote provisionally, Husted’s directive will likely disenfranchise many more Democrats than Republicans.
And here’s the lawyer for the good guys, Subodh Chandra, with quotes from the judge’s ruling which was just issued (the full ruling is further below):
U.S. District Judge Marbley finds that Ohio Secretary of State Jon Husted violated provisional voters’ substantive due process and equal-protection rights, violated a federal Consent Decree, and violated state law by–at the eleventh-hour, the Friday night before the election–shifting from poll workers to voters the statutory responsibility of recording identification information, and then directing elections boards to disenfranchise voters where the information was incomplete or missing.
[Among the judge's findings:]
“Counsel for the Secretary unambiguously assured this Court that the Secretary understood the recording of ‘identifying information’ to be a duty ‘imposed upon the poll worker’ and that the failure to do so would not ‘invalidate ballots.’ The Court relied on this statement to the Plaintiff’s detriment. Nine days after making that representation to the Court, the Secretary ordered that no provisional ballots be counted if the identification information was improperly recorded, without [e]ngaging in fact-finding to support the change.” (PAGE 13)
“The surreptitious manner in which the Secretary went about implementing this last minute change to the election rule casts serious doubts on his protestations of good faith.” (PAGE 13)
“Here the Secretary’s eleventh hour Directive, which disenfranchises an unknown but potentially large number of Ohio voters and violates state law, is one of the ‘rare, but serious’ violations of state election law” that violate substantive due process. (PAGE 14)
“The poor drafting of Form 12-B which, by design or by accident, purports to shift the poll worker’s statutory duty to record the form of identification to the provisional voter, did not provide occasion for the Plaintiffs to seek injunctive relief until the Secretary issue Directive 2012-54 at 7:00 pm on November 2…” (PAGE 9)
“Ohio voters reasonably expect that the Secretary of Ohio will abide by the General Assembly’s laws in administering a federal election. For an executive official of the state to [flout] state law in arbitrarily reassigning a poll worker’s statutory duty to a voter, with the result being disenfranchisement of the voter, is ‘fundamentally unfair and constitutionally impermissible.’” (PAGE 15)
“First, having created the equal protection issue by issuing a directive that violates both state law and a voluntarily entered Consent Decree, the Secretary cannot benefit from his illegal act by using it to escape his obligations under the Consent Decree. Second, if the Secretary has drafted Form 12-B in such a way that it both illegally shifts the burdens of recording identification information from election officials to voters and does not allow election workers to distinguish poll-worker error from voter failure to provide identification, that is the Secretary’s mistake. There were myriad options available to the Secretary to create a form which would have made such distinctions clear, but he chose not to pursue those options.” (PAGE 11)
“The voter acting in good faith cannot suffer disenfranchisement as a result of the Secretary’s drafting errors.” (PAGE 12)
And here’s the judge’s order:
2012-11-13 NEOCH #357 Opinion and Order of Judge Marbley