Dan Horn

dhorn@enquirer.com

Ohio Secretary of State Jon Husted went to court Monday to overturn a judge's order last month that kept polls open an extra hour because of a traffic jam.

It's too late to do anything about that March 15 order, but Husted wants to keep it from happening again, especially in the presidential election this fall.

The "notice of appeal" filed Monday in U.S. District Court doesn't make any legal arguments. It is, however, a first step toward a full-blown appeal of the controversial order issued by U.S. District Judge Susan Dlott as polls were closing March 15.

"We can't change it at this point," Husted spokesman Josh Eck said of Dlott's order. "Our appeal is based on principle. We don't want this to be a precedent going forward, that this kind of order is acceptable."

The notice includes sworn statements from several state and local election officials about the chaos they say occurred following Dlott's order, which applied to Hamilton, Butler, Clermont and Warren counties.

Assistant Secretary of State Matthew Damschroder said he received a voicemail from someone Dlott's office about one minute before polls closed at 7:30 p.m. Local election officials, including those in Hamilton County, said they didn't find out about the order until almost a half-hour later.

Voters and election officials complained that some polls reopened, while others did not, creating a haphazard system that may not have been fair to everyone.

"It was simply too late for the order to be implemented uniformly, and the counties made best efforts in this difficult situation," Damschroder said in his statement.

Dlott told The Enquirer after the election that she decided to extend poll hours after people stranded in the traffic jam contacted the federal court clerk's office, asking for help. A serious accident, in which a car went over a bridge and into the Ohio River, had backed up traffic for miles on I-275 that afternoon and into the early evening.

"People were using their cell phones from the highway. They wanted to vote," Dlott said at the time. "I did what I thought I had to do under the law."

The order was unusual because it did not involve a plaintiff who filed a lawsuit with the court and no hearing was held to evaluate the evidence. Husted and his staff have said that sort of intervention into a state's election process is unreasonable, and they want to prevent it from happening again.

The outcome of the appeal, which will be heard by the U.S. 6th Circuit Court of Appeals, will not affect the outcome of the March 15 primary election. That's because Husted ordered the counties to count all ballots cast, even the few dozen that came in after 7:30 p.m. that night.

Hamilton County officials say 37 such votes were cast there.