Election law cases in Court today

Posted by AzBlueMeanie:

While we are awaiting a decision from the Pennsylvania Commonwealth Court on voter ID in Pennsylvania (certain to be appealed to the state supreme court), let's take a look at other election law cases in court today.

The U.S. Supreme Court has denied petitions for certiorari this morning in:

Washington State Democratic Central Committee v. Washington State Grange, Docket: 11-1263

– and –

Libertarian Party of Washington State v. Washington State Grange, Docket: 11-1266

These are cases challenging Washington state's top-two primary system on a theory of trademark infringement to protect the use of the trademark of "Democratic Party" and "Libertarian Party" by candidates who are not the official candidate of the party, under a primary system that allows candidates to self identify party affiliation through voter registration. High court rejects Wash. top-2 primary appeal – AP. This is relevant to Prop. 121 in Arizona on the ballot in November.

In Ohio, the U.S. Court of Appeals for the Sixth Circuit will hear two appeals today on early voting and Ohio's so-called "right church, wrong pew" rule for rejecting provisional ballots due to poll worker errors. Edward Foley, an election law expert writes at Election Law @ Moritz – Commentary: Two Big Cases Ready for Major Appellate Rulings: 

In the next week or two, the U.S. Court of Appeals for the Sixth Circuit will decide two Ohio election cases with both practical and jurisprudential importance. One concerns the rollback of early voting during the last three days before Election Day (November 6 this year). The other involves the invalidation of a ballot cast by a valid voter in the correct polling location, but to whom the poll worker erroneously gives the incorrect ballot for the voter's specific precinct.

Both cases present claims based on the Fourteenth Amendment to the U.S. Constitution, and both expose the current uncertainty of how the Fourteenth Amendment applies to voting rules, particularly in the aftermath of Bush v. Gore. The Ohio government lost both cases in the federal district court, but is seeking to reverse those two rulings on appeal. The Secretary of State, Jon Husted, declined to appeal the main portion of the provisional voting case, but the Attorney General, Mike DeWine, appealed on behalf of the State of Ohio as an independent litigating entity. 

The early voting case, brought by the Obama campaign, challenges Ohio’s convoluted legislative and administrative processes that have resulted in a regime that forecloses early voting on the Saturday, Sunday, and Monday immediately before Election Day—except for a designated category of military and foreign-domiciled voters, who may be able to engage in early voting during those three days if their local elections board permits them to do so. The Obama campaign claims that this preferential treatment of some voters over others violates the Fourteenth Amendment's Equal Protection Clause. The district court agreed and ordered reinstatement of these three days of early voting for all the State’s voters. (For more details, see Steve Huefner's analysis.)

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The provisional voting case is another matter. Here the poll worker’s mistake has caused the outright disenfranchisement of an eligible and registered voter who has done precisely what the government has asked the voter to do: to go to the voter’s correct polling place. This outright disenfranchisement of a valid voter at the hands of a government official, far from a modest cutback in an otherwise rather generous menu of voting options, is a denial of the right to vote that would seem to call for a federal court injunction pursuant to the Fourteenth Amendment. Since the 1960s, the U.S. Supreme Court has held that the right to vote, being fundamental, is protected by the Fourteenth Amendment against “invidious” and “arbitrary” infringements by state governments. Telling a voter that her ballot won’t count because, although she showed up at the right polling place and is entirely eligible to participate in this year’s presidential election, she was given the wrong ballot because the poll worker made a mistake as to which “precinct” her address is in—that severe injustice is appropriately labeled as “invidious” or “arbitrary” and condemned as unconstitutional.

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The State claims that its division of voters into “precincts” is important, and historically this may have been true. When each “precinct” is a distinct geographical neighborhood, and voters vote according to the precinct in which they reside, with each precinct having its own distinct polling place—well, then government would be on solid ground claim that, for a ballot to count, it must be cast in the correct precinct. But when the government itself consolidates several so-called “precincts” into a single polling location, the distinctiveness of each “precinct” loses much of its significance. It cannot be that important that a voter cast her ballot in Precinct A rather than Precinct B when the two precincts share the same polling place. The geographic separateness of the two precincts is obviously not enough to have them vote in different polling places. Therefore, if the voter goes to the correct polling place and is a valid voter, then it cannot be a sufficient reason to disqualify the voter’s ballot that the voter didn’t vote in the correct geographically separate “precinct”—at least not when the government officials at the polling location were the ones who made the mistake of giving the voter the ballot corresponding to the incorrect “precinct” for the voter’s address.

* * *

[T]he division of voters into technically different “precincts” is largely irrelevant insofar as several precincts share the same polling place. When the voter arrives at the correct polling location, the voter has satisfied the legitimate geographic concerns that the State may have regarding voters casting ballots in the right place. If the State has a desire to subdivide voters geographically even more than the boundaries that separate one polling place from another, then it should be up to the government officials to get it right with respect to this further subdivision. But if the government’s workers cannot figure out this additional level of geographic subdivision when a voter shows up at the right polling place, then the government should not be permitted to disqualify the voter’s ballot because of the government’s own error with respect to this geographically arcane—and inconsequential—matter.

This point, moreover, explains why the federal court can require the counting of a “wrong precinct” ballot only with respect to the items on the ballot for which the voter, based on her address, is entitled to vote. If there are indeed any “down-ballot” items that are precinct-specific, then the voter’s ballot cannot count for those items, notwithstanding the poll worker error. . . (By erroneously giving the voter the “wrong precinct” ballot, the poll workers might have deprived the voter from precinct-specific items on the “correct precinct” ballot that the voter should have received.) But for any item on the ballot for which the specific precinct of the voter is irrelevant—from President and U.S. Senator and other statewide races on down to county commissioner and the like—there is no geographically compelling reason to disqualify a ballot of a valid voter who showed up at the correct polling place, especially when the poll workers there could not figure out which precinct was the correct one for the particular voter.

Richard Hasen at Election Law Blog has an essay in Slate today on the Ohio cases. Ohio voter laws: the battle over disenfranchisement you haven't heard about. – Slate Magazine.

The "right church, wrong pew" rule for provisional ballots may take on significance here in Arizona where more and more precincts have been consolidated into polling areas, and there have been reported incidents of poll worker error resulting in a provisional ballot. Thousands of provisional ballots were not counted in the last election. In a close contest, these provisional ballots could make the difference.