Will GOP Sec. of State Jon Husted correct that in 2012?...

Brad Friedman Byon 7/30/2012, 4:00pm PT

Setting aside for a moment whether or not the ballots of Ohio voters were and are counted accurately, a new investigative report by the Cincinnati Enquirer's Barry M. Horstman finds that some 40,000 provisional ballots cast during the Buckeye State's 2008 Presidential election were never even counted at all.

Worse, thousands of them, as the paper details, were disqualified due to no fault of voters...

Each election year, Ohio residents cast thousands of ballots that are not counted. Despite efforts to simplify the state's voting to avoid widespread discarding of ballots, it could happen again in November's presidential race. The Enquirer, during a weeks-long examination of the state's electoral procedures, found that voting - America's most precious right and the foundation for all others - is a fragile civic exercise for many Ohioans. A confusing maze of state laws, administrative directives and court rulings on voting procedures, errors - by voters and poll workers alike - and other factors cause large numbers of ballots to end up in the electoral trash can every year, particularly in urban counties.

...

In Hamilton County alone, hundreds of votes are routinely disqualified in major statewide elections because they are cast in the wrong precinct, often only feet from the correct location. Hundreds more votes have been tossed out for another relatively minor miscue: voters' failure to seal an inner envelope containing their absentee ballot.

The report goes on to warn that, unless there are changes made to the state's election laws and procedures --- including the implementation of changes recommended by state election officials after the 2008 contest --- "tens of thousands of ballots are likely to be disqualified" in the key swing-state, once again, during the 2012 Presidential election...

The most disturbing of the problems detailed by the Enquirer stem from pollworkers misdirecting voters. Tens of thousands of provisional ballots are cast only because a pollworker has failed to instruct a voter that, while they are voting at the correct polling place, they are attempting to vote at the wrong "precinct" --- in other words, at the wrong table in the correct polling place!

One of the major reasons provisional ballots are discarded is that voters, sometimes at the erroneous direction of poll workers, vote in the wrong precinct - typically, the wrong table in the right school gymnasium, church basement or firehouse, a phenomenon referred to as "right church, wrong pew." Coupled with other systemic difficulties in how Ohio's elections are conducted and its votes are counted - or, more importantly, not counted - that creates a batch of disputed ballots sizable enough to potentially change even something as momentous as who occupies the White House. In 1976, for example, Ohio helped tip the election to Jimmy Carter, who defeated President Gerald Ford by only 11,116 votes out of nearly 4.1 million cast in the state. Last year, in an election with a much smaller turnout than a presidential race, 11,287 provisional ballots were disqualified statewide.

This is a problem which has been going on for years in Ohio. It led to the disqualification of tens of thousands of ballots in the state's 2004 Presidential election in which just 6 votes recorded for John Kerry instead of George W. Bush at each precinct in the state would have resulted in an entirely different outcome to that year's election.

Husted's test

We've lauded Ohio's new Republican Secretary of State, Jon Husted, for his courageous and correct stance against his own party's cynical attempt at instituting disenfranchising polling place Photo ID restrictions. "I want to be perfectly clear," Husted announced in a powerful statement issued as his party attempted to slip such an initiative into a new election bill last year. "When I began working with the General Assembly to improve Ohio's elections system it was never my intent to reject valid votes. I would rather have no bill than one with a rigid photo identification provision that does little to protect against fraud and excludes legally registered voters' ballots from counting.")

He earned our cautious respect with that unambiguous position at a time, and in a state, where he was decidely swimming against the tide of his own party.

We've also recognized Husted's call for the legislative repeal of the very law which he ultimately helped to craft, once it became clear that the controversial restrictions on early voting and the distribution of absentee ballots in the bill, had been met with a popular outcry resulting in the law being placed on hold in order to face a voter referendum at the ballot box this November.

With all of those kudos in mind, it was disappointing to see Husted's lackadaisical attitude regarding the extraordinary number of provisional ballots which are routinely cast in Buckeye State, along with the tens of thousands not counted at all, thanks in no small part to poll worker error.

"When 99.5 percent do it right, that's pretty darn good," Husted told the Enquirer, which went on to note: "That is especially true, he added, in a system involving 7.7 million registered voters, 40,000 poll workers and roughly 4,800 polling locations and 9,400 precincts."

It's one thing to credit the 99.5 percent of poll workers who get it right. It's another matter entirely to a) avoid taking responsibility for those whose training was inadequate enough to lead to tens of thousands of votes being unnecessarily discarded, b) place the blame on those poll workers or those voters and c) to support the premise that ballots cast at the wrong table in the right room should go uncounted, particularly when poll workers, who are relied upon to help voters, mis-instructed so many to do exactly that.

This is an entirely unacceptable situation which Sec. of State Husted ought to be using the full power of his office to reconcile --- and immediately so --- rather than make excuses for, much less excuses that blame either poll workers or voters for what is clearly the fault of the election officials who oversee them.

Instead, Husted seems to place the blame for this mess on the voters who have, year after year, been sent through a dizzying maze of changing precincts, differing rules, and re-located polling places.

"If I show up at the right airport, I can't go to the Delta terminal and demand to be flown to Chicago when I bought a ticket on Southwest," Husted argues in placing the blame on the voters. "There's no reason anyone even has to cast a provisional ballot if they've taken the personal responsibility to meet the pretty easy standard they have to live up to under Ohio law to cast a regular ballot," he added.

But his remarks avoid the obvious. There are thousands of poll workers directing voters to cast their ballot at the wrong location --- either purposefully or accidentally (we'll not bother to argue either one here for the moment) --- and voters should not have to pay the ultimate price for that misdirection.

"If a voter goes to the trouble of finding out where their polling place is and goes to the correct polling place ... our paid poll workers darn well ought to be able to get them to the right table," Ohio's Hamilton County Democratic Party chairman Tim Burke, a longtime member of the County Elections Board, argues.

Carrie Davis, the Executive Directgory for the Ohio League of Women Voters says: "It’s almost unimaginable that a voter would show up at a polling place and insist on voting at a particular table after being told that’s the wrong location and your vote won’t count."

Democratic state Sen. Eric Kearney of North Avondale adds: "Many voters travel miles to reach the polls. If poll workers can’t take care of them for the last few feet of that trip, how’s that the voter’s fault?"

Making matters still worse, the Enquirer explains, the differing rates of approval of those provisional ballots from county to county suggests a racial and/or class disparity, as well as "constitutional equal protections issues" along with it:

Most of Ohio's provisional votes are cast in five large urban counties: Hamilton, Cuyahoga (Cleveland), Franklin (Columbus), Montgomery (Dayton) and Summit (Akron). In November 2010, they produced 54,470, or 52 percent, of Ohio's 105,195 provisional votes, and an even higher percentage of those that were discarded - 57 percent (6,748) of 11,772. In the same election, 3,725 provisional ballots were issued in Butler County, 1,410 in Clermont County and 1,732 in Warren County. And at the lower end of the spectrum, five small counties issued fewer than 100 provisional ballots. Nearly 89 percent of Ohio's provisional votes were counted in 2010, slightly better than Hamilton and Cuyahoga counties' 85 percent rate. The highest validation rates came in smaller counties with fewer provisionals, such as Wayne (99 percent), Coshocton (97 percent), and Holmes (96 percent).

Big problem, bad law

The Enquirer's Horstman goes on to report how the state election code offers a direct discrepancy on whose responsibility it is to ensure voters at the right polling place actually cast their ballot at the correct table/precinct.

One section of state law declares that "It is the duty of the poll worker to direct the voter to the correct precinct or table," while another section of the statutes prohibit counting ballots cast in the wrong precinct, even when the ballot was miscast due to poll worker error, according to Horstman.

The result, as found by the U.S. 6th Circuit Court of Appeals, is that the voters, as usual, pay the price for the lawmakers' lousy legislation.

"Arguably, these two provisions operate together in a manner that is fundamentally unfair to the voters of Ohio," the court found. "Ohio has created a system in which state actors (poll workers) are given the ultimate responsibility of directing voters to the right location to vote. Yet, the state law penalizes the voter when a poll worker directs the voter to the wrong precinct, and the penalty, disenfranchisement, is a harsh one indeed."

The Service Employees International Union (SEIU) and other labor unions, have filed suit in Ohio on behalf of all voters, arguing that provisional ballots cast in the wrong precinct due to poll worker error should be counted. That case will be heard starting this week.

Husted, who we have lauded in the past, even as we keep an open, if necessarily skeptical eye on his efforts as Ohio's chief election official in yet another crucial Presidential election year, has failed to show leadership on behalf of the voters so far on this issue.

Having corrected course on some of his previous decisions, we can only hope he will do the same on this matter, and quickly, before Ohio becomes the bain of electoral integrity once again in 2012 --- the first Presidential election under a Republican Sec. of State since J. Kenneth Blackwell's criminally disenfranchising tenure in 2004.

"When you’re an elections official, you just hope for a blowout one way or the other so you don’t have a close election," Husted told the Enquirer. "But I don’t think that’s what we’re going to have in Ohio. So we’re preparing as if the world is watching."

The world is watching, Mr. Secretary. And "hoping" for the best doesn't cut it. Your actions, not your "hopes", will determine history's verdict of your tenure. We can only hope that verdict doesn't resemble the eternal stain left on the Buckeye State's record following the reprehensible anti-Democratic and anti-democratic tenure of Mr. Blackwell, the last Republican Sec. of State to hold that office during a Presidential election year.

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