Pass along a news tip by clicking HERE.

Wednesday, February 08, 2012

U.S. Judge Orders Provisional Ballots Tallied In 2010 Juvenile Court Election: Ruling Seen Favoring Democrat Tracie Hunter

Tracie Hunter Appears Closer To Judgeship
CINCINNATI (TDB) -- The 93-page decision handed down today by U.S. District Judge Susan Dlott requires the Hamilton County Board of Elections to count about 300 disputed provisional ballots that were not tallied after the November 2010 election.  Those ballots are expected to tip the contest to Democrat Tracie Hunter, who currently trails by 23 votes in an election still undecided 15 months after the polls closed.  Dlott said elections officials are "enjoined from rejecting otherwise valid provisional ballots that were cast in the correct location but the wrong precinct."  The problems arose because Hamilton County has several voting sites with multiple precincts in the same location -- a voter could accidentally go to the wrong table and be disenfranchised.  You can read the full-text of the decision by clicking here Dlott described 2010 the Election Day procedures as "chaotic" with poll workers confused about their responsibilities:

"In sum, the testimony revealed a chaotic process in which, despite their training, some poll workers did not know that a ballot cast in the wrong precinct would not be counted, some poll workers understood that the voters had to cast their ballot in the correct precinct but failed to confirm that the voter was in the right precinct before giving the voters a provisional ballot, and some poll workers did not direct voters to the correct precinct because they made mistakes when using the complicated voting location guide.  Voters generally did what poll workers told them to do."

Dlott said Ohio's ballot system is at fault for sowing confusion and is unfair.  But she stopped short of declaring it unconstitutional:

"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.  However, because Plaintiff's did not challenge the constitutionality of Ohio's election statutes, this Court is without jurisdiction to order a remedy."

Tracie Hunter, a Demcorat, filed the lawsuit demanding that provisional ballot be counted.  She was joined by the Ohio Democratic Party.  Her Republican opponent, John Williams, intervened in the lawsuit to block the count.  The Hamilton County Board of Elections also was a defendant, although its two Democratic members, Caled Faux and Tim Burke, sided with Hunter and wanted to the ballots tallied.

So far, there is no word on an appeal.  Elections officials would have to agree to seek a review of the ruling in the 6th Circuit U.S. Court of Appeals in Cincinnati, and an appeal could take months.  It would also run up the attorney fees.  And at the moment there is no decision on when the provisional ballots will be counted.

UPDATE -- 2:02 p.m. Press statement from Hunter's lawyer with comments from Hunter:
  “We are thrilled with this ruling,” said attorney Jennifer Branch, counsel for Juvenile Judge Candidate Tracie Hunter.   The ruling will add over 300 votes to the tally.  Judge Dlott found that the Board violated right to equal protection and due process and rejected all of the defenses posed by the Board in her 93 page opinion.  The case was tried over three weeks in July and August, 2011.  Tracie Hunter stated that the ruling, “Protects rights of the voters and that was our major goal.  Many of those votes come from African American precincts so receiving this ruling during Black History Month is very fitting.  The right to vote is a major accomplishment of the civil rights struggle and we have solidified that right with this case.” 
UPDATE -- 2:14 p.m.  Caleb Faux, a board of elections member and executive director of the Hamilton County Democratic Party, said the board could meet as early as Friday to consider its next step.  Faux said he favors counting the ballots:
"The choices in front of us at the Board are:  Do we comply with this or do we appeal?  That remains to be seen.  I think that at this point, I would prefer to comply with the order.  We've already spend a lot of money.  I have read the full opinion.  I think that Judge Dlott has issued an opinion that is going to be hard to challenge.  But I don't know what is going to happen, but I think it is time to count those votes and get this over with."  


  1. Do not appeal, count the ballots and make a deal between the two political parties that allows John Williams to remain as Juvenile Court Judge. He is running in the November General Election. Tracie Hunter should withdraw as a candidate in that contest. My assumption is that the provisional ballots are from Democratic precincts and John Williams's 23-vote lead evaporates. Hunter gets that seat. Williams gets the other seat.

  2. The ruling was not very complimentary about the skills and intellectual abilities of poll workers. Judge Dlott said one did not know comprehend differences between odd and even numbers. Where do they get these people? If anything, this should crystallize the necessity for having more attention paid to how we conduct elections in Ohio.

  3. Cincinnati Liberal LawyerFebruary 08, 2012 2:39 PM

    I betcha Alex T. wishes now wishes he didn't shoot off his mouth and call Tracie Hunter unAmerican. When the negotiations collapsed because of his big mouth, he lost his chance to make a deal to avoid this ruling. Alex T is stuck with provisional ballots forever. He is turning Hamilton County blue.

    1. She wins. The Republicans kicked up a hornets nest and got stung. Now they will never be trusted to count a vote in this county.

  4. Striped Jungle CatFebruary 08, 2012 5:51 PM

    Democrats should be cautious. There are 300 ballots still to be counted. History shows that in judicial elections many voters pass over judicial candidates because the names are unfamiliar. If there is a 40% drop off due to the pass over factor, that leaves 180 ballots marked for Juvenile Judge. In reality, we could be dealing with a much smaller pool than 300 ballots. If Ms. Hunter receives 100 votes of the 180 and Mr. Williams receives 80 then Mr. Williams wins by three votes.

    Elections are never ever certain until the votes are counted. I believe nobody can predict with certainty what these uncounted ballots reveal. Democrats could be putting the cart before the proverbial horse, or donkey. There is a possibility of looking like jackasses.

  5. It's long overdue, to tie up this office and spend that kind of money to discount the African American vote demonstrates how far the GOP is willing to go to disenfranchise the minority vote.

  6. This is a sad commentary on our judicial and political system that any candidate period, but especially for for Judge would not want all the votes tallied. There is no way the Republican candidate would take the opposing position if he were behind in the initial tally.

    Right is right and wrong is wrong! How can we let our political affiliation or desire to win at all cost override just doing the right thing??

  7. Cincinnati Liberal LawyerFebruary 09, 2012 9:07 AM

    I see a negotiation coming. The Republicans must agree not to appeal if the Democrats and Tracie agree that she will withdraw her candidacy in 2012 vs. John Williams. The Dems then would have to pledge they will not have a candidate for Juvenile Court this year. This arrangement results in Mr. Williams having no opposition for a term ending in 2014. All parties gain a win under the above scenario.

    That is the agreement you can expect to see by early March.