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Cleveland—Ohio GOP Secretary of State Jon Husted has become an infamous figure for aggressively limiting early voting hours and opportunities to cast and count a ballot in the Buckeye State. Ad Policy

Once again Husted is playing the voter suppression card, this time at the eleventh hour, in a controversial new directive concerning provisional ballots. In an order to election officials on Friday night, Husted shifted the burden of correctly filling out a provisional ballot from the poll worker to the voter, specifically pertaining to the recording of a voter’s form of ID, which was previously the poll worker’s responsibility. Any provisional ballot with incorrect information will not be counted, Husted maintains. This seemingly innocuous change has the potential to impact the counting of thousands of votes in Ohio and could swing the election in this closely contested battleground.

[provisional ballot image courtesy of Think Progress]

“Our secretary of state has created a situation, here in Ohio, where he will invalidate thousands and thousands of people’s votes,” Brian Rothenberg, executive director of ProgessOhio, said during a press conference at the board of elections in Cuyahoga County yesterday in downtown Cleveland. Added State Senator Nina Turner: “‘SoS’ used to stand for ‘secretary of state.’ But under the leadership of Jon Husted, ‘SoS’ stands for ‘secretary of suppression.’ ”

In 2008, 40,000 of the 207,000 provisional ballots cast in Ohio were rejected. The majority of the state’s provisional ballots were cast in Ohio’s five largest counties, which are strongly Democratic. Moreover, provisional ballots are more likely to be cast by poorer and more transient residents of the state, who are also less likely to vote Republican.

The number of discarded provisional ballots could rise significantly due to Husted’s directive. It’s also very likely that more provisional ballots will be cast in 2012 than in 2008, thanks to a wave of new voting restrictions in Ohio and nationwide. The Associated Press reported that 31 percent of the 2.1 million provisional ballots cast nationwide in 2008 were not counted, and called provisional ballots the “hanging chads of 2012."

A series of missteps by the secretary of state and new rulings by the courts have increased the use of provisional ballots and could delay the outcome of the election and the legitimacy of the final vote.

In Cuyahoga County (Cleveland) and Franklin County (Columbus), voters who requested absentee ballots were wrongly told they were not registered to vote and should cast provisional ballots. The Cuyahoga County Board of Elections quickly followed up with 865 such voters, but in Franklin County a sample of rejected absentee ballot requests found that 38 percent were mistakenly listed as “not registered,” according to an analysis by Norman Robbins of Northeast Ohio Voter Advocates. An untold number of would-be absentee voters could fall into this category in Ohio’s other eighty-six counties. “The deadline has passed to send these voters absentee ballots,” writes Robbins. “Therefore, there needs to be an immediate and broad public announcement that all voters who have been officially informed that they are ‘not registered’ and who believe they truly are registered, should definitely vote a provisional ballot so that their votes might be counted when better searches are done on their provisional ballots.” (A computer glitch by the secretary of state’s office also delayed the processing of 33,000 voter registration forms, which Husted just sent to local boards of elections this week).

Moreover, any voter who requested an absentee ballot but decides, for one reason or another, to vote in person must cast a provisional ballot. Of the 1.3 million absentee ballots sent to Ohio voters, 1.1 million have been returned, according to Husted’s office. But that still leaves up to 200,000 potential votes unaccounted for.

Recent court decisions will also impact the counting of provisional ballots. The US Court of Appeals for the Sixth Circuit found that ballots cast in the “right church, wrong pew”—at the right polling place, wrong precinct—must be counted, despite Husted’s objections. But the court sided with Husted that ballots cast at the “wrong church, wrong pew”—at the wrong polling place and wrong precinct—won’t be counted, and that election officials are not required to tell voters that they’re at the wrong location.

A coalition of voting rights groups have filed an emergency injunction against Husted’s last-minute provisional ballot directive. Husted’s briefs are due in court by November 6. According to Ohio law, provisional ballots won’t be counted until ten days after the election. So, if the presidential election comes down to Ohio and the margin is razor-thin, as many are predicting, we won’t know the outcome until well after Election Day. And only then will we find out how many eligible voters were wrongly disenfranchised by the secretary of state.

For more on the final fight to protect voting rights this Election Day, check out "How Hurricane Sandy Will Impact the Election."