Ruling leaves House vote in Ohio undecided

Disputed provisional ballots must be counted, a federal judge ruled.

COLUMBUS (AP) — A federal judge in Columbus ruled Thursday that disputed provisional ballots must be counted in one of the nation’s final undecided congressional races.

The decision by U.S. District Judge Algenon Marbley has the potential to affect the outcome of the race between Republican Steve Stivers and Democrat Mary Jo Kilroy in the 15th District. However, his ruling was immediately appealed and provisional-vote counting was put on hold for another week.

Stivers’ lead grew to 479 votes over Kilroy on Thursday, after one of three counties in the district finished its official count. The two are running to succeed retiring Republican Deborah Pryce, who only narrowly beat Kilroy in 2006.

The case before Marbley involved ballots cast in Franklin County, the largest and most Democrat-leaning in the district.

“This case touches on the most fundamental of rights of American citizens: the right to vote,” Marbley said.

Provisional ballots are issued at polls to people who believe they have been wrongly denied the right to vote. About 1,000 ballots are in dispute in the House race because of defects such as voters’ failing to both print and sign their names.

Marbley’s ruling came in a lawsuit filed last week by supporters of Stivers, who argued the ballots were invalid because they were missing either a printed name or a signature, or the two were interchanged on ballot envelopes.

In his ruling, the judge said the plaintiffs never disputed that the voters who used the provisional ballots were eligible, properly registered and voted in the correct precinct, and that not counting the ballots would disenfranchise legitimate voters. His ruling sides with Secretary of State Jennifer Brunner, who had said the ballots should be counted because the problems were due to poll worker error.

“We are pleased that the court recognizes the clear, consistent guidance Secretary Brunner provided prior to Election Day,” said Brunner spokesman Jeff Ortega. “These pre-election directives were issued under court order and in keeping with federal and state law.”

Punctuating his ruling with a reading of Ohio’s voter fraud statute, Marbley called unfounded the plaintiffs’ contention that allowing the disputed ballots to be counted would promote fraud. He said election officials have ways to double-check the validity of all the disputed votes.

The plaintiffs filed their appeal Thursday with the 6th U.S. Circuit Court of Appeals in Cincinnati within minutes of Marbley’s ruling, and he granted an injunction to prevent ballots from bring counted until 9 a.m. next Friday.

Marbley said he doubts the appeals court will reverse him, because he used seasoned legal arguments and favored voter enfranchisement. But he worried denying the stay could be misinterpreted by voters as suppression.

“If a decision is characterized as disenfranchising even one voter, in a very personal way I would feel I had done a disservice to jurisprudence,” he said.

Though the lawsuit pertains to only about 1,000 questioned ballots in the House race, it affects the counting of all 27,306 of the county’s outstanding provisional ballots. That is because no provisional ballot can be counted until the rules are determined for them all.

In addition to the U.S. House race, the uncounted ballots could play a role in two state House races.

The Ohio vote is one of three U.S. House races still up in the air nationwide.