Husted Nov. 2 Directive
on Provisional Ballots and Reactions +
DIRECTIVE 2012-54
November 2, 2012
To: All County Boards of Elections
Members, Directors, and Deputy Directors
Re: Determining the Validity of Provisional Ballots and the Modified
NEOCH Consent Decree
SUMMARY
The validity of certain provisional ballots has been the subject of
ongoing litigation since 2006. Based on very recent court decisions,
some provisional ballots cast at the wrong precinct but at either the
correct polling place on Election Day or at the correct board of
elections office1 on or after the 28th day before the election must be
remade (consistent with Directive 2012-22) and counted for those races
in which the voter was eligible to cast a ballot.
Because of these eve-of-election court decisions, I am required to
issue these instructions at this late hour. In order to avoid
confusion, Directives 2012-01 and Directive 2012-44 are hereby
rescinded.
Additionally, to avoid voter confusion and conflicts with recent court
decisions, boards of elections must not post the “Judge Carr Notice.”
As such, Advisory 2011-04 is rescinded.
The Directive is issued to provide uniformity across Ohio’s 88 county
boards of elections in reviewing provisional ballot affirmations on
provisional ballot envelopes to determine the eligibility of the
ballots to be counted by providing county boards of elections with a
mandatory six-step procedure.
PROVISIONAL
BALLOT
AFFIRMATION ENVELOPES
All Boards must use SOS Form 12-B, originally provided with Directive
2012-01 and attached to this Directive, on provisional ballot
affirmation envelopes for the November 2012 General Election.
All Boards must also provide precinct election officials SOS Form 12-D,
originally provided with Directive 2012-44 and attached to this
Directive, for the precinct election official to complete when a voter
is in the wrong precinct of the correct multiple-precinct polling place
and the voter insists on casting a provisional ballot in the wrong
precinct.
GENERAL
REMINDERS ON PROCESSING PROVISIONAL BALLOTS
• Boards of elections may begin examining provisional ballot envelopes
the day after the election.2
• The board of elections must adopt a provisional ballot policy, under
which it may designate bipartisan teams to examine and categorize
provisional ballot envelopes; however,
only
the
board members themselves can determine the validity of each
provisional ballot.
• The board members themselves determine the validity of each
provisional ballot by majority vote at a properly noticed public
meeting.
• A board of elections must not start counting
ANY provisional ballot until
AFTER the board members themselves
have determined the validity or invalidity of
ALL provisional ballots cast in that
county.3
• Boards must complete the examination and counting of provisional
ballots no later than the twenty-first day after the election.4
DETERMINING
THE
VALIDITY OF PROVISIONAL BALLOTS
Step 1: Determine whether the
affirmation statement on the provisional ballot envelope contains both the voter’s printed
name and either a
valid signature or a note by
the precinct election official on the signature line indicating that
the voter declined to execute
an affirmation.
• If the affirmation statement contains both the voter’s printed
name and either a valid signature or a note on the signature line that
the voter declined to sign, proceed to Step 2.
• If the affirmation statement does
not contain both the voter’s printed name and either a valid
signature or declination, then the Board must reject the provisional
ballot.5
The presence of the voter’s printed name and signature is a requirement
of state law, affirmed by the Ohio Supreme Court in
Skaggs v Brunner, and the
Sixth Circuit Court of Appeals in SEIU v. Husted.
Step 2: Determine whether
the provisional voter provided at least one of the following: the last
four digits of the voter’s social security number, the voter’s driver’s
license number, OR a notation that the voter provided another form of
acceptable identification.
• If the voter provided one of the acceptable forms of identification
proceed to Step 3.
• If the voter did not provide one of the acceptable forms of
identification but completed a Form 10-T, proceed to Step
3.
• If the voter did not provide identification on the provisional ballot
affirmation but returned to board of elections within ten days after
the election6 and provided identification or signed the SOS Form 10-T proceed to Step
3.
• If the voter did not provide identification on the provisional ballot
affirmation, did not complete SOS Form 10-T , and did not return to the
Board within the ten days after the election to remedy the missing
item, the Board must reject the
provisional ballot.
Step 3: Determine whether
the Board can verify the
identity of the voter based on the voter’s printed name,
signature, and identification information provided on the provisional
ballot affirmation or provided by the voter within the ten day period.
• If the Board can verify the identity of the voter
based upon the information provided on the provisional ballot
affirmation and/or provided by the voter within ten days of the
election, proceed
to
Step 4.
• If the Board cannot verify
the identity of the voter based upon the information provided on the
provisional ballot affirmation and/or the information provided by the
voter within ten days of the election, the Board must reject the
provisional ballot.7
Note that verification of identity
includes at least one search
of the county’s local voter registration database by entering as much
or as little information as is available, and by using “wildcard”
searches if available, and at
least one search of all counties using the statewide voter registration
database by entering as much or as little information as is available.
Unlike a voter registration card or absentee ballot application, date of birth and address are not required
on a provisional ballot affirmation. Therefore, a provisional ballot
affirmation that does not have the voter’s date of birth and/or address
is valid so long as the board
can verify the voter’s identity and registration status in the State of
Ohio.
Step 4: Determine whether the voter is a
registered voter anywhere in the State of Ohio at least 30 days before
the election.
• If the voter was registered to vote
anywhere in the State of Ohio at least 30 days before the election, proceed to Step
5.
• If the voter was not registered to vote anywhere in the State of Ohio
at least 30 days before the election, then the Board must reject the
provisional ballot.8
Step 5: Determine whether the voter is a resident
of the county and precinct in which the voter offers to vote.9
• If the voter is a resident of the
county and precinct in which the provisional ballot was cast, then the
Board must accept
and
count the provisional ballot;
• If the voter moved and provided a new address within the precinct on
the back of the provisional ballot envelope, then the voter is
considered a resident of the new county and precinct and the Board must
accept and
count the provisional ballot;
• If the voter cast the provisional ballot in the wrong precinct, but
in the correct polling place, including the board of elections office,
and a precinct election official did not complete and attach SOS Form
12-D to the provisional ballot envelope, the Board
must
remake and count the provisional ballot for only those contests for
which the voter was otherwise eligible to vote.
• If the voter cast the provisional ballot in the wrong precinct, but
in the correct polling place, including the board of elections office,
and a precinct election official did complete and attach SOS Form 12-D,
but the Board verified that the precinct to which the poll worker
directed the voter was the incorrect precinct, the Board must remake and
count the provisional ballot for only those contests for which the
voter was otherwise eligible to vote.
• If the voter cast the provisional ballot in the wrong precinct, but
correct polling place, including the board of elections office, and (1)
a precinct election official completed SOS Form 12-D and (2) the Board
verified that the precinct to which the precinct
election official directed the voter was the correct precinct, the
Board must reject
the
provisional ballot.
• If the voter cast the provisional ballot in the wrong precinct and
wrong polling place the Board must reject the
provisional ballot.
Step 6: If you have completed Steps 1
through 5 and determined that the provisional ballot should be
rejected, consider the following:
Under the consent decree issued by the federal court in Northeast Ohio
Coalition for the Homeless v. Brunner, S.D. Ohio No. 2:06-cv-896,
("NEOCH"), boards of elections may not reject provisional ballots cast
by voters who use only the last four digits of their Social Security
number as identification for the following reason:
The poll worker did not complete or
properly complete and/or sign the provisional ballot application
witness line and/or the provisional ballot affirmation form, except for
reasons permitted by the governing statutes.
As noted on SOS Form 12-B, failure by the precinct election official to
complete the “Precinct Election Official Info” section will not result
in the provisional ballot being rejected.
CONSENT
DECREE AS MODIFIED
Boards of elections are instructed to comply with the injunctive relief
cited below as provided in the April 19, 2010 Consent Decree and
modified by the Court on October 26, 2012 and November 2, 2012.
Additionally, each board of elections must post a notice that contains
the text of the injunctive relief granted in a conspicuous place in
every location in which provisional ballots are processed after an
election. A copy of the notice to be posted is attached.
The injunctive relief in the Consent Decree as modified is as follows:
III. GENERAL INJUNCTIVE RELIEF.
4. The Court ADOPTS and annexes hereafter Directive 2008-80 as an Order
of this Court.
5. Defendant Secretary of State, her agents, employees and
representatives will instruct Ohio’s county Boards of Elections to
adhere to the following rules regarding the casting and counting of
provisional ballots for persons without identification other than a
social
security number:
a. Boards of Elections must count the provisional ballot cast by a
voter using only the last four digits of his or her social security
number as identification if all of the following conditions are met:
i. The individual who cast the
provisional ballot is registered to vote;
ii. The individual is eligible to cast a ballot in the precinct and for
the election in which the individual cast the provisional ballot;
iii. The provisional ballot affirmation includes a statement that the
individual is registered to vote in the precinct in which the
provisional ballot was cast and a statement that the individual is
eligible to vote in the election in which the provisional ballot was
cast;
iv. The individual’s name and signature appear in the correct place on
the provisional ballot affirmation form, unless the voter declined to
execute the affirmation and the poll workers complied with their
statutory duties under R.C. 3505.182 and R.C. 3505.181(B)(6) when a
voter declines to execute the affirmation;
v. The signature of the voter substantially conforms to the signature
contained in the Board of Election’s records for that voter;
vi. The provisional ballot affirmation includes the last four digits of
that voter’s social security number, which is not found to be invalid;
vii. The individual’s right to vote was not successfully challenged;
viii. The individual did not already cast a ballot for the election in
which the individual cast the provisional ballot; and
ix. Pursuant to R.C. 3505.183(B)(2), the Board of Elections determines
that, in addition to the information included on the affirmation, there
is no additional information for determining ballot validity provided
by the provisional voter or to the Board of Elections during the ten
days after the day of the election that casts doubt on the validity of
the ballot or the individual’s eligibility to vote.
b. Boards of Elections may not reject a provisional ballot cast by a
voter, who uses only the last four digits of his or her social security
number as identification, for any of the following reasons:
i. The voter provided the last four
digits of a Social Security Number but did not provide a current
driver’s license, state issued identification, or other document which
serves as identification under Ohio law;
ii. The voter did not provide a date of birth;
iii. The voter did not provide an address that is tied to a house,
apartment or other dwelling provided that the voter indicated that he
or she resides at a non-building location, including but not limited to
a street corner, alley or highway overpass located in the precinct in
which the voter seeks to cast a ballot and that the non-building
location qualifies as the individual’s voting residence under R.C.
3503.02;
iv. The voter indicated that he or she is homeless;
v. In light of the injunction issued in SEIU Local 1 v. Husted, Section
III (5) (b) (v) of the April 19, 2010 Consent Decree has been removed
for the purposes of the November 6, 2012 election. County boards of
election are ORDERED to comply with the Directives that govern the
counting of provisional ballots cast in the correct polling location,
but in the wrong precinct;
vi. The Court has removed this provision of the Consent Decree. See NEOCH v. Husted First Order issued October
26, 2012; or
vii. The poll worker did not complete or properly complete and/or sign
the provisional ballot application witness line and/or the provisional
ballot affirmation form, except for reasons permitted by the governing
statutes.
c. Boards of Elections must observe the following rules regarding the
delegation of processing provisional ballots, and determining their
validity, to board staff:
i. Ultimately, the members of Boards of
Elections must determine the validity of all votes cast in an election
and must certify the results of all elections. However, nothing in Ohio
law requires that the members of a Board of Elections must personally
complete all tasks associated with preparing for that certification.
ii. Thus, Boards of Elections may, under a policy adopted by the Board,
delegate the processing and some aspects of counting provisional
ballots to board staff. Such processing must be done in bipartisan
teams.
iii. If a Board of Elections delegates the processing of provisional
ballots, it must first adopt a policy setting forth procedures for the
processing of provisional ballots. Under that policy, board staff
responsible for processing provisional ballots must make a
recommendation to the Board as to the eligibility of each provisional
ballot cast in the county, either on an individual basis, or as to
groups or categories of similarly situated provisional ballots.
iv. Ultimately, the members of Board of Elections must determine the
eligibility or ineligibility of all provisional ballots cast within the
county in accordance with Ohio law. Boards may not delegate this task.
v. Each Board of Elections must then
cause the ballots to be counted by board staff, and must include the
tabulation of that count in its official canvass of the election
results and, to the extent required, its certification of the election
results to the Secretary of State.
If you have any questions concerning the this Directive or the
examination and evaluation of provisional ballots, please contact the
Secretary of State’s elections counsel assigned to your county at (614)
466-2585.
Sincerely,
Jon Husted
1 Throughout this Directive, when referring to the “board of elections
office” this also includes another site designated by the board to hold
in-person absentee voting. R.C. 3501.11(Z)
2 R.C. 3505.183(E)(1)
3 R.C. 3505.183(D)
4 R.C. 3505.32(A)
5 R.C. 3505.183(B)(4)(a)(iii)
6 The only four reasons to require a provisional voter to provide
additional information to the board of elections during the ten days
after the day of an election are:
• The voter possesses a social security
number or proper identification, but was unable to provide it to the precinct
election official; R.C. 3505.181(A)(3)
• The voter possesses a social security number or proper
identification, but declined
to provide it to the precinct election official; R.C. 3505.181 (A)(13)
• The voter does not possess a
social security number or proper identification, and refused to sign a
SOS Form 10-T; R.C. 3505.181(A)(12)
• The voter was challenged at
the polling place and his or her eligibility to vote could not be
determined by the precinct election officials; R.C. 3505.181(A)(7)
7 R.C. 3505.183(B)(4)(b)(i); State ex rel.
Skaggs v. Brunner (2008), 120 Ohio
St. 3d 506.
8 Ohio Constitution Article V, Section 1; R.C. 3505.183(B)(4)(a)(i);
R.C. 3505.183(B)(4)(a)(iv); R.C. 3505.183(B)(4)(a)(vi)
9 R.C. 3503.01(A)
PRESS RELEASE from
fitzgibbonmedia.com
FOR IMMEDIATE RELEASE:
Sunday, 04 November 2012
CONTACT:
Brett Abrams
Citizens Outraged By Ohio Sec. Of State Jon
Husted’s Last Minute Attempt To Disenfranchise Unsuspecting Voters
Directive
Issued Friday Night Violates Ohio Law, Recent Court Decisions and Puts
Hundreds of Thousands of Provisional Ballots in Jeopardy
OHIO -
In a last minute directive issued Friday night, Ohio republican
Secretary of State Jon Husted changed requirements for submitting
provisional ballots on Election Day. The directive includes
a form
which shifts the burden to the voter to correctly record the type
of
ID they provided to election officials. This new directive - a
clear
violation of Ohio law - could confuse hundreds of thousands of voters
in Ohio who are used to election officials recording this
information.
Putting even more voters in risk of not being counted, Husted has
instructed election officials to not count ballots where that part of
the form has not been correctly filled out by a voter.
FOR MORE INFORMATION: http://thinkprogress.org/election/2012/11/03/1134981/last-minute-ohio-directive-could-trash-legal-votes-and-swing-the-election/
In
response to this blatant violation of Ohio law, Ohio State
Representative Mike Foley started a new petition on SignOn.org
demanding Secretary of State Jon Husted reverse his last minute
directive and stop this efforts to disenfranchise Ohio voters.
Representative Foley (D-Cleveland) has served the 14th District since
he was appointed to represent constituents in Brook Park, Parma
Heights, and Cleveland Wards 19, 20 and 21 in May of 2006.
VIEW THE PETITION HERE: http://signon.org/sign/ohio-secretary-of-state
For more information, or interviews with Rep. Mike Foley please
contact Brett Abrams at 516-841-1105 or by email at brett@fitzgibbonmedia.com.
# # # # #
SignOn.org is the non-profit, online campaign
platform from MoveOn.org that lets anyone
start and run their own online campaigns.
PRESS
RELEASE
from Ohio Democratic
Party
November 13, 2012
Federal Judge Finds
Husted Last Minute Provisional Ballot Change To Violate Ohio Law, U.S.
Constitution
As
Governor
Kasich’s
Legislative
Supermajority Hangs In Balance With Two Recounts, Federal Judge Rules
Against Husted Plot to Toss Out Provisional Ballots
COLUMBUS – Today, a Federal
District
Court
Judge ruled
– yet again – against Secretary of State Jon Husted and his
eleventh-hour move that shifted responsibility from properly filling
out portions of a provisional ballot from poll workers to voters. Judge
Algenon Marbley wrote that Husted’s move “to flaunt state law in
arbitrarily reassigning a poll worker’s statutory duty to a voter, with
the result being disenfranchisement of the voter, is ‘fundamentally
unfair and constitutionally impermissible.’”
The practical effect of this ruling is that some provisional ballots
that may have been disqualified due to poll worker error will now be
counted. This ruling could be especially important in two legislative
races that have yet to be decided that will determine whether Governor
John Kasich will have a supermajority in the Statehouse. If Democrats
win one of these races, it will be the first time in Ohio’s history
where the minority party held or gained seats following redistricting.
A Democratic victory would also block Kasich from gaining the power to
place issues such as “right to work” or “personhood” directly on the
ballot through the legislature, circumventing the petition process.
In response to Husted’s latest Court loss, and vow to appeal, Ohio
Democratic Chairman Chris Redfern released the following statement:
“Secretary of State Husted, Governor Kasich, and Republicans have
not fared well this year in their effort at every turn to
disenfranchise Ohio voters. After wasting nearly $100,000 in taxpayer
dollars appealing his many court, Husted should ask himself if perhaps
the people of Ohio might not be better served if he just let this loss
go, and stopped trying to strip people of their right to have their
vote counted.
“This court decision is a win for the people of Ohio, and it will
assist our recount efforts in the two undecided legislative races to
ensure that Kasich does not get a supermajority in the Statehouse that
would allow him to place ‘right to work’ or ‘personhood’ on the ballot.”