Nearly 15 months after the disputed election, a federal judge ruled today that Hamilton County elections officials must count roughly 300 provisional ballots cast in a 2010 Juvenile Court judge race.
U.S. District Judge Susan Dlott said that the Board of Elections violated the voters’ constitutional rights when it decided to count some provisional ballots but discard others based solely on the location of where they were cast.
“The Hamilton County Board of Elections violated provisional voters’ right to equal protection under the law when, in determining whether provisional ballots were cast in the wrong precinct because of poll worker error, it considered evidence of the location where provisional ballots were cast for some, but not all, provisional ballots cast in the wrong precinct,” Dlott wrote in her 93-page decision.
The dispute stems from the Juvenile Court judge race between Democrat Tracie Hunter and Republican John Williams and the outcome of the November 2010 election.
Hunter seemingly lost by just 23 votes out of nearly 230,000 ballots cast by county voters. Under Ohio law, if the margin of victory is under one-half of 1 percent, an automatic recount is triggered.
The dispute centers on which provisional ballots should be tallied. Provisional ballots are those cast by a person who may or may not be eligible to vote, which are set aside for later review by elections officials.
In the judicial race, 849 provisional ballots eventually were disqualified. Hunter and local Democratic Party leaders, however, believe 286 of those ballots should be counted because they were cast by people who showed up to vote at the correct polling place but were misdirected by poll workers and voted at the wrong precinct table.
Most of the disputed ballots were from precincts that are predominantly Democratic.
Hunter filed a lawsuit in federal court alleging the ballots should be counted. Dlott had ordered the local Board of Elections to precisely determine how many ballots weren’t counted due to poll worker error, before she decided. That’s when local Republicans appealed the order.
Williams alleged poll workers correctly followed the state law and excluded the ballots, and that they shouldn’t be tallied. The GOP tried to get the U.S. Supreme Court to weigh in on the matter, but it declined to hear the case in April 2011. That put the matter back in Dlott’s court.
Since the dispute began, Williams was appointed to another vacant Juvenile Court judgeship in November 2011.
Today’s ruling is a victory for Hunter and Democrats. It means 286 of the disputed ballots must be counted.
Dlott wrote, “Ohio’s precinct-based voting system that delegates to poll workers the duty to ensure that voters are directed to the correct precinct but which provides that provisional ballots cast in the wrong precinct shall not be counted under any circumstance, even where the ballot is miscast due to poll-worker error, is fundamentally unfair and abrogates the Fourteenth Amendment’s guarantee of due process of law.”
The ruling concludes, “The Board shall count votes for the Juvenile Court Judge race as well as the other three races/issues on those ballots presently pending recounts in Hamilton County.”