Elections chief appeals judge's order

ANDREW WELSH-HUGGINS AP Legal Affairs Writer Published:

COLUMBUS (AP) -- A federal judge's demand to come up with a new order regarding provisional ballots is even worse than a previous court demand, Ohio's election chief has argued in asking an appeals court to reject the judge's order.

At issue is whether voters or poll workers should record the form of identification that is used on provisional ballots, such as military identification or a utility bill, when voters don't bring proper identification.

Judge Algenon Marbley told Secretary of State Jon Husted earlier this week not to reject certain provisional ballots and to come up with a new directive regarding the ballots. Marbley said Husted's near-Election Day directive violated a previous court ruling and state law.

Provisional ballots include those cast when voters don't bring proper ID to the polls or cast them in the wrong precinct.

Voter advocates had claimed Husted's directive wrongly shifted the burden of recording the form of identification used on a provisional ballot from poll workers to voters. They said putting the requirement on voters at the last minute increases the likelihood that ballots could be wrongly rejected.

Marbley wants Husted to issue a new directive by Friday.

The state begins counting approximately 200,000 provisional ballots Saturday.

The number of ballots in question is far smaller than that, likely fewer than 2,000, according to the state's voter advocates. And the number of ballots is one reason they argue Marbley's order is not a burden on the state.

Marbley previously ordered Husted to count provisional ballots cast not just in the wrong precinct but also in the wrong polling place altogether, a happenstance known as "wrong church, wrong pew."

The 6th U.S. Circuit Court of Appeals in Cincinnati overturned that ruling, and Husted wants the court to back him again.

"This latest round is worse," attorneys for Husted said in an appeal Wednesday to the appeals court.

Marbley "changed the rules after the election was held, but before Ohio's provisional ballots are opened for counting this Saturday," the attorneys said.

Attorneys representing homeless voters argue the appeals court should uphold Marbley's order. They contend Husted's office told Marbley such identification should be checked by poll workers during an earlier court hearing, then went back on their word with the order issued late in the afternoon on Friday, Nov. 2.

The public interest is served "by preventing the disqualification of votes of lawfully registered voters solely as a result of poll workers' failure to fulfill their statutory duties," the advocates argued to the appeals court Thursday.

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