U.S. Appeals Court In Cincinnati Greenlights Probe Into Hamilton County Voting: 849 Provisional Ballots Must Be Checked For Pollworker Error

Sec'y of State Brunner Also Weighs In 

CINCINNATI (TDB) -- The ruling by the 6th Circuit Court of Appeals was a legal victory for Tracie Hunter, a Democrat who contends procedures at the Hamilton County Board of Elections may have cost her hundreds of votes.  Hunter trails Republican John Williams by 23 votes in the race for Juvenile Court judge.  Williams sought a decision from the 6th Circuit that would have shelved an investigation into provision ballots that was ordered by U.S. District Judge Susan Dlott.  Williams got slam dunked by the federal appeals court panel -- two members of the three-judge panel were appointed by Democratic presidents.  But the ruling came without any dissent from a George W. Bush appointee.  That lessens crticism partisan antics was behind the decision.

Meanwhile, Ohio Secretary of State Jennifer Brunner, a Democrat who is leaving office next month because she didn't seek reelection, issued a directive that governing procedures ove how provisional ballots must be examined for poll worker error.  Brunner's directive said the possibility numerous voters were sent to the wrong precinct in Hamilton County polling locations with multiple precincts should be examined .  There are about 290 of those provisional ballots at stake in the Hunter-Williams contest.  Brunner's order mandates:

" . . . if a board of elections finds multiple provisional ballots voted in the correct polling location but wrong precinct, it should, either in writing, with written responses from the poll workers, or at a public meeting of the board, question the poll workers in that polling location to determine whether they followed the board's instructions for ensuring that voters were directed to the correct precinct.  If the board finds that poll worker error of this nature existed, it shall not reject the provisional ballot, unless other valid reasons for rejection exist, and the board shall count the votes for all races and issues for which the elector was eligible to vote."

A three-judge appeals court panel said the 849 disputed provisional ballots can be segregated as a group for the investigation into poll worker error.  It said the board counted some provisional ballots cast at its downtown headquarters, but rejected others from other locations around the county.  That created possible disparities in how votes were counted:

". . .the Board decided not to count 849 provisional ballots that were cast in the wrong precinct at the regular polling stations on electiong day without investigating whether pollworker error was equally at fault in causing any of these ballots to be cast in the wrong precinct.  This disparate treatment -- county the 26 wrong-precinct ballots based on pollworker error during early voting without similarly investigating whether pollworker error led to any of the 849 ballots being case in the wrong precinct on election day -- forms the basis for the injunctive order in this case.  We cannot conclude that the district court abused its discretion in determining that this disparate treatment made it 'likely enough that the [likelihood-of-success] factor weights in favor of granting the preliminary injunction.'  This analysis weighs against Williams' motion to stay the district court's preliminary injunction."

The 6th Circuit decision was issued by judges Gilbert S. Merritt, appointed by Democratic President Jimmy Carter; Ronald Lee Gilman, appointed by Democratic President Bill Clinton, and Deborah L. Cook, appointed by Republican President George W. Bush.

[UPDATE: 12/-3/10 9:30 a.m. -- Justin Jeffre at the Cincinnati Beach links to The Daily Bellwether and says action on the legal front is positive news for Tracie Hunter. Jeffre writes that "it looks like Tracie Hunter is likely to become the first African American Juvenile Court Judge in Hamilton County . . ." What is also an interesting sidelight about voting last month is that Democratic women did quite well in Hamilton County: Nadine Allen, another African American woman, won a contested Common Pleas Court judgeship; Jody Luebbers was unopposed by the Republicans and won a full six-year term in the judgeship that had been vacated by GOP Chairman Alex Trinatafilou; Hunter is closing in on the juvenile spot, and State Rep. Connie Pillich was reelected to the State House over the local Tea Party founder. In countywide contests, the Dem women did far better than males.]