Ohio

Note: The following is a compendium of election administration questions and answers identified by the EL@M team as important for the November, 2006 election. The information was gathered from publicly available sources, and is intended as an objective, nonpartisan summary. It is not intended to constitute legal advice. Those seeking legal advice should retain an attorney.

Eligibility and Registration

1. What are the requirements for eligibility to vote?

Every US citizen eighteen or older who has been a “resident” of Ohio for at least thirty days immediately preceding an election, has been registered to vote for at least thirty days preceding that election, and who “has the qualifications of an elector” may vote in that election. R.C. 3503.01.

According to the Secretary of State, voters have the qualifications of an elector when they are not otherwise disqualified from voting under Ohio’s election laws for criminal conviction or incompetence.

Officials must refer to R.C.3503.02 to determine whether a person is a “resident.” In general, people are residents of the places where they live and are not residents of places they visit on a temporary basis. People are also residents of the places where their spouses reside, unless they are separated. People lose their residence in Ohio if they live in another state for four years or vote in another state. A homeless person is a resident at a place of shelter where he or she intends to return.

2. What procedures must eligible voters follow to register?

To register, would-be voters must fill out and return a form prescribed by the Secretary of State. R.C. 3503.14.

If sent by mail, the form must be postmarked no later than the thirtieth day preceding the election in which the prospective voter wishes to vote. R.C. 3503.19(A). If delivered by a method other than mail, the form must be received no later than this date. The form requires the applicant enter certain basic information regarding identity, residence and citizenship. A downloadable version of the form may be found here. Voters may learn whether their registration attempt was successful by checking a publicly accessible database maintained on the Secretary of State’s website. R.C. 3503.05.

Voter Registration and Database Management

3. What process, if any, is the state following in matching voter records in its statewide registration database against Social Security and state motor vehicle records?

Unknown. The Secretary of State should issue procedures governing this, but has not made any information about such procedures publicly available.

R.C. 3503.15(C)(4) requires the Secretary of State to create a statewide voter registration database “capable of verifying registered voters and their registration information by name, driver’s license number, birth date, social security number, or current address….” However, there is no indication whether the existing system has this capability or, if it does, whether and how it is being used.

The Ohio Secretary of State can adopt rules for verification of registration cards. In fact, R.C. 3503.15(D) requires the Secretary of State to establish uniform methods for entering voter registration records into the statewide voter registration database. It also requires the Secretary of State to establish uniform, non-discriminatory methods of removing voter registration records from that database and performing annual audits of the database. However, it is not clear whether the Secretary of State has issued any applicable rules that are presently in effect.

In directive 2005-12, issued May 18, 2005, the Secretary of State directed officials to look to 95-36, an earlier directive, to determine the proper procedures for canceling voter registrations. At this time, directive 95-36 is not publicly available and it is unknown whether it remains in effect or has been superseded by another directive. It is also unclear whether that directive concerned “matching” specifically, or just cancellation. This information is not available short of a public records request.

The federal Help America Vote Act requires that states create a statewide voter registration database “coordinated with other agency databases within the State.” 42 U.S.C. 15483. However, the Act does not explain how these databases should be coordinated. In addition, it requires that voter registration applications shall not be accepted unless they provide either a driver’s license number or the last four digits of a social security number and that the state determine whether the information provided is “sufficient” to meet these requirements under state law.

Ohio election statutes do provide for coordination of the state registration database with state databases that track deaths, felony convictions, and adjudications of mental incompetence. See, respectively, R.C. 3503.18, 2961.01, and 5122.301. The statutes do not provide for coordination with state motor vehicle or social security records, but do not prohibit such coordination, either.

4. If a new voter registration card is rejected because the information it contains is slightly different than the information contained in other state databases concerning that same voter (suppose the bureau of voter vehicles has the name of the driver with that license number as “Andrew Smith” whereas the voter registration card with that license number provided as ID says “Andy Smith”), what opportunity does the voter have to correct that error, and will a provisional ballot cast by that voter count?

The voter must file an application for correction, and whether the provisional ballot counts depends on whether the application is successful and/or whether the Board determines in its consideration of the provisional ballot that the voter was entitled to vote.

Voters who believe their registration applications were improperly rejected may file with the local Board of Elections an application for the correction of the precinct registration list. R.C. 3503.24(A). This must be done at least twenty days before Election Day. Upon receiving this application, the Board must determine whether it can resolve the issue “solely on the basis of the records maintained by the board ….” R.C. 3503.24(B). If it cannot resolve the issue this way, the Board must conduct a hearing within ten days of the filing of the application. The Board must issue its decision immediately upon conclusion of the hearing, and the precinct registration list must be corrected accordingly. Id.; R.C. 3503.24(C).

A voter whose name does not appear on the voter registration list and who fails to file a correction application twenty days before Election Day has no power to force the Board to add his or her name to the registration list in time for the election. All the voter can do is cast a provisional ballot under R.C. 3505.181 and hope officials determine on their own that they should not have rejected the registration card and the vote should be counted.

Former 3503.19(C)(1)(c) required the Board to notify rejected applicants of their rejection, but that requirement was removed by HB3. See old 3503.19(C)(1)(c). Without this requirement, there is a risk that voters will allow the twenty-day deadline to pass because they incorrectly believe that silence from the Board means their registration attempts were successful. To avoid this problem, voters should confirm successful registration before the twenty day deadline by checking the voter registration database made available on the Secretary of State’s website under R.C. 3505.15(G)(link here). Voters also may call the local Board of Elections or visit its offices during business hours.

5. If a provisional ballot is rejected because the voter is unregistered according to records in the state’s new centralized voter registration database, what additional procedures (if any) must state officials undertake to see if the omission of this voter from the database is erroneous? (For example, must the state election officials double-check with the state’s bureau of motor vehicles to determine if any new registration forms, although submitted by the voter on time, were delayed in being transmitted to the board of elections?)

The Board of Elections must check its records and make a judgment call based on R.C. 3505.183(B)(3) and (4) and rules promulgated by the Secretary of State. The Board does not have a duty to communicate with or examine the records of any other office.

Before it can count (or decide not to count) a provisional ballot, the local Board of Elections must first determine whether the person who cast that ballot was properly registered to vote. R.C. 3505.183(A)(3)(a), (A)(4)(a)(i). To make this determination, the Board must look at three pieces of evidence. First, the Board must examine its own records under R.C. 32505.183(B)(1). Second, it must examine the “affirmation” that accompanies the provisional ballot. The affirmation is a form provisional voters must fill out when casting their ballot that contains the voter’s name and signature and a statement that the voter is registered and eligible to cast a ballot in the current election and jurisdiction. R.C. 3505.183(B)(1)(a)-(c). Third, the Board must examine any additional information written by the voter on the affirmation, any information provided by the voter to certain election officials, and any relevant information provided by anyone to the board of elections within ten days of the election. R.C. 3505.183(B)(2). There is no requirement that the Board examine any other evidence or communicate with any other office to determine whether a provisional voter is properly registered to vote. In fact, the law does not even explicitly state that the Board must examine the central voter registration database managed by the Secretary of State under R.C. 3503.15, although there is nothing to prohibit it from doing so.

6. Before rejecting a provisional ballot on the ground that the voter is unregistered according to records in the state’s new centralized voter registration database, what procedures (if any) does the state have for requiring its officials to check whether the voter is listed in the database under slightly different information than provided on the provisional ballot (for example, “Andy” instead of “Andrew”; middle name instead of middle initial; 125 Elm “Street” instead of 125 Elm “Road”)?

See previous question.

7. If a provisional ballot is rejected because the signature on the ballot does not match the signature in the state’s centralized voter registration database, does the state have any objective standards for making this signature-mismatching determination?

The law does not currently require the state to have “objective” standards for comparing signatures to determine whether voters are who they claim to be. However, it also does not prohibit the state from developing such standards. Currently, the state relies upon the naked eye to make such comparisons.

R.C. 3505.18(B) provides that voters “shall write the elector’s name and address at the proper place in the poll list or signature pollbook” after entering the polling place to vote. In addition, R.C. 3505.22 provides that, if election officials believe a person is impersonating a voter, they may question that person about his or her right to vote and require the person to provide a signature. R.C. 3505.18(B) states that precinct election officials shall compare the signature provided by the voter at the polling place on Election Day with the signature contained on the registration form (or electronic copy) for that voter. If, “in the opinion of a majority of the precinct election officials,” the signatures match, the voter shall be allowed to proceed to cast a regular ballot. Id. (emphasis added). If, in the opinion of a majority of the precinct election officials, the signatures do not match, the election officials may challenge the voter’s right to cast a ballot. At that point, the election officials will not allow the voter to cast an ordinary ballot unless the voter “establishes” his or her right to vote in some way not defined in the Code. If this voter does not establish his or her right to vote, he or she may cast a provisional ballot under R.C. 3505.181(A)(10).

8. What opportunity in general does a voter have to determine whether the submission of a new registration form has successfully resulted in the voter’s inclusion in the state’s database of registered voters and, if the voter learns that the submission was unsuccessful, to rectify the problem before Election Day (thereby enabling the voter to cast a regular rather than provisional ballot)?

Voters should receive by mail notice of successful registration, and may also check online or at the local Board of Elections.

R.C. 3505.15(G) requires that the voter registration database be made available to the public on the Secretary of State’s website. In addition, R.C. 3503.13(A) mandates that the statewide voter registration database and all registration forms submitted by applicants be made available for public inspection during business hours. Furthermore, R.C. 3503.19(C)(1) requires a Board of Elections that receives a satisfactory registration application to promptly notify the applicant in writing that he or she has been registered. Theoretically, receipt of such a notice means that the voter has been added to the statewide database as well, although in practice it may be that the names of some properly registered voters may not make it onto the database due to human error or other reasons.

Former 3503.19(C)(1)(c) required the Board to notify rejected applicants of their rejection, but that requirement was removed by HB3. See old 3503.19(C)(1)(c). Without this requirement, there is a risk that voters will allow the twenty-day deadline to pass because they incorrectly believe that silence from the Board means their registration attempts were successful. To avoid this problem, voters should confirm successful registration before the twenty day deadline by checking the voter registration database made available on the Secretary of State’s website under R.C. 3505.15(G)(link here). Voters also may call the local Board of Elections or visit its offices during business hours.

Voters who believe officials improperly failed to register them may file with the local Board of Elections an application for the correction of the precinct registration list. R.C. 3503.24(A). This must be done at least twenty days before Election Day. Upon receiving this application, the Board must determine whether it can resolve the issue “solely on the basis of the records maintained by the board ….” R.C. 3503.24(B). If it cannot resolve the issue this way, the Board must conduct a hearing within ten days of the filing of the application. The Board must issue its decision immediately upon conclusion of the hearing, and the precinct registration list must be corrected accordingly. Id. ; R.C. 3503.24(C).

A voter whose name does not appear on the voter registration list and who fails to file a correction application twenty days before Election Day has no power to force the Board to add his or her name to the registration list in time for the election. All the voter can do is cast a provisional ballot under R.C. 3505.181 and hope the Board determines the voter should have been registered. [top]

9. If it is determined that a new voter registration card was not included in the state’s database of registered voters because of an error committed by a third-party registration group (for example, the group failed to deliver the card on time), will a provisional ballot cast by the voter count?

Probably not. The law does not make any distinction between errors made by a third-party registration group and errors made by a voter who attempts to register without assistance. Thus, the answer depends on what type of error was made, not on who made that error.

R.C. 3505.181(B)(4) provides that provisional ballots will count only “[i]f the appropriate local election official … determines that the individual is eligible to vote ….” In the case of a voter registration card that was not timely received, R.C. 3503.19 clearly states that cards must be received “no later than the thirtieth day preceding … [the] election for the person to qualify as an elector eligible to vote at the election.” In the face of such language, it is highly doubtful that a provisional ballot cast by a voter whose registration card was not timely received will be counted, regardless of who was responsible for the untimeliness.

10. (A) When will a voter’s registration be canceled?

A voter’s registration shall be canceled in at least eight different situations. They are:

1. When the voter files a request for cancellation of registration. R.C. 3503.21(A)(1).
2. When a notice of death of the voter is filed under 3503.18. R.C. 3503.21(A)(2).
3. When the voter is convicted of a felony. R.C. 3503.21(A)(3).
4. When a voter is adjudicated incompetent as provided by R.C. 5122.301. R.C. 3503.21(A)(4).
5. When the voter moves outside the county in which he or she is registered. R.C. 3503.21(A)(5).
6. When a newly registered voter either (a) fails to respond to a confirmation notice, fails to update his or her registration, and fails to vote over a four-year period. R.C. 3503.21(A)(6).
7. When a voter’s registration is successfully challenged by another elector under 3503.24(A).
8. When a voter’s registration is removed pursuant to the procedures created by the Secretary of State under R.C. 3501.05(Q).

In procedure (5), when voters move outside the county in which they are registered, the Board shall cancel their registrations. R.C. 3503.21(A)(5). However, before doing so, the Board must send cancellation notice to the voter and may only go through with canceling the registration if the voter fails to respond to the notice and fails to vote in the next two federal elections. R.C. 3503.21(B)(2). The Board may learn of voters’ change of residence by using the postal service’s change of address service. R.C. 3501.05(Q)(1). Readers who would like more information about procedures Boards used in 2005 to cancel the registrations of voters who had moved should see Secretary of State’s Directive 2005-12.

In procedure (6), the Board mails the newly registered voter notice of successful registration. R.C. 3503.19(C)(1). If the postal service returns the notice to the Board, the board will attempt to determine the correct address. If it cannot determine the correct address, it will mark the voter’s name in the rolls and require that voter to vote by provisional ballot. R.C. 3503.19(C)(2). Then the Board will cancel the voter’s registration after allowing four years and two federal elections to pass without a vote by that voter. Voters can prevent cancellation by (a) voting at least once before cancellation (but they will only be allowed to vote by provisional ballot and the registration will still be canceled if the Board decides not to count the ballot) or (b) responding to a second follow-up registration notice the Board sends out by forwardable mail or (c) updating their registration information with the local Board of Elections. R.C. 3503.21(A)(6) ; R.C. 3503.19. The Board will cancel a voter’s registration if the voter casts a provisional ballot and the Board decides not to count it. 3503.19(C)(2).

In procedure (7), a voter’s registration may also be cancelled after a successful challenge to that voter’s eligibility under 3503.24(A)—a challenge that may be filed by any voter against any other voter twenty or more days before the election. If the Board, solely on the basis of its own records, is able to determine a voter’s registration should be cancelled, then the Board may cancel that registration. R.C. 3503.24(B). If the Board is not able to resolve the challenge solely on the basis of its own records, it must schedule a hearing and give notice of the hearing to the voter whose registration is challenged. R.C. 3503.24(B). The Board will issue its decision immediately after the hearing.

R.C. 3505.21(C) provides that a voter’s registration “shall not be canceled except as provided in this section, division (Q) of section 3501.05 of the Revised Code, division (C)(2) of section 3503.19 of the Revised Code, or division (C) of section 3503.24 of the Revised Code.” Therefore, theoretically speaking, voters should not fear cancellation without notice except in the limited situations discussed above. However, depending on their nature, the procedures created by the Secretary of State under R.C. 3501.05 could result in some cancellations. The Secretary of State once issued a directive describing these procedures (Directive 95-36), but that directive is not publicly available and it is unclear whether it would still be in effect in any case. Regardless, whatever procedures the Secretary of State uses should stay within the strictures of the National Voting Rights Act (NVRA), which prohibits removing voters from the rolls except in cases of voluntary removal, criminal conviction or incompetence, death and change of residence. 42 USC 1973gg-6(a)(3)-(4).

10. (B) What is the last date before an election on which state officials may purge voters from their voter registration database?

It is never too late to remove a voter from the rolls.

The Board of Elections must use the central database to prepare a “complete and official registration list for each precinct” fourteen days before the election. R.C. 3503.23. Therefore, any changes made to the database at least fourteen days before the election will be reflected in the precinct lists. Furthermore, changes made after this date will also be reflected in the precinct lists because R.C. 3501.05(Q)(3) requires the Secretary of State to develop a system for removing voters from precinct lists even after the Board has printed them for use at the polls. Also, if the Board resolves an election challenge by deciding to remove a voter from the rolls, it must remove the information of that individual from “the precinct lists, which shall constitute the poll lists, to be furnished to the respective precincts with other election supplies on the day preceding the election, to be used by the election officials in receiving the signatures of voters and in checking against the registration forms.” R.C. 3503.24(C).

10. (C) What kind of notice must the state provide voters before purging their registrations from the database?

Ohio’s statutes do not give notice in all situations, and do not always give the same type of notice. The type of notice a voter is entitled to before the Board cancels his or her registration depends on the reason for cancellation.

A voter’s registration shall be canceled in at least eight different situations. They are:

1. When the voter files a request for cancellation of registration. R.C. 3503.21(A)(1).
2. When a notice of death of the voter is filed under 3503.18. R.C. 3503.21(A)(2).
3. When the voter is convicted of a felony. R.C. 3503.21(A)(3).
4. When a voter is adjudicated incompetent as provided by R.C. 5122.301. R.C. 3503.21(A)(4).
5. When the voter moves outside the county in which he or she is registered. R.C. 3503.21(A)(5).
6. When a newly registered voter either (a) fails to respond to a confirmation notice, fails to update his or her registration, and fails to vote over a four-year period. R.C. 3503.21(A)(6).
7. When a voter’s registration is successfully challenged by another elector under 3503.24(A).
8. When a voter’s registration is removed pursuant to the procedures created by the Secretary of State under R.C. 3501.05(Q).

In situations (1), (2), (3), (4), and (8) Ohio statutes do not explicitly provide for any type of notice. Furthermore, as of the September 5, 2006, courts have not “read” any notice requirements into the statute and the Secretary of State has not promulgated any publicly available directives or advisories requiring such notice.

However, voters should expect to receive at least some type of cancellation notice under procedures (5), (6), (7).

In procedure (5), the Board must send cancellation notice to the voter and may only go through with canceling the registration if the voter fails to respond to the notice and fails to vote in the next two federal elections. R.C. 3503.21(B)(2).

If the Board cancels a voter’s registration under procedure (6), it must notify the voter by US mail. R.C. 3503.19(C)(2). However, since the Board in all likelihood has a bad address for this voter, it is questionable whether this notice will actually reach the voter. In Miller v. Blackwell, 348 F.Supp.2d 916 (S.D. Ohio, 2004), the court granted an injunction to prevent holding challenge hearings to remove voters from the rolls, partially because “Defendants intend to send the notice to an address which has already been demonstrated to be faulty.” Id. at 923.

The law does not always provide for notice to the voter in procedure (7), depending on the method the Board uses to determine the merits of the challenged. If the Board decides the challenge solely on the basis of its own records, the statute does not explicitly require any kind of notice. However, if the Board must schedule a hearing to determine the issue, it must give notice of the hearing to the voter whose registration is challenged. R.C. 3503.24(B). Voters who attend the hearing should get notice of its outcome because the Board should announce it at the conclusion of the hearing. Unfortunately, the statute does not state that the Board must give notice of the outcome of the hearing, only the date and time to appear, so voters who do not attend the hearing may not learn its outcome until they attempt to vote.

District courts in both the Northern and Southern Districts of Ohio have held that officials may not remove the names of individuals from the voter roles without giving notice (or adequate notice) or opportunity to challenge the removal. League of Women Voters of Ohio v. Blackwell, 432 F.Supp.2d 723, 730 (N.D. Ohio, 2005); Miller v. Blackwell, supra. However, those holdings may be overruled or limited to their particular facts or jurisdictions.

10. (D) What opportunity must the state give voters to challenge the purge of their registration (either prior to Election Day, or during the process of reviewing provisional ballots)?

Voters may stop the Board from canceling their registrations by filing an application for the correction of precinct registration list under R.C. 3503.24(A).

At any time twenty or more days before Election Day, voters who believe officials improperly failed to register them or who improperly cancelled their registrations may file with the local Board of Elections an application for the correction of the precinct registration list. R.C. 3503.24(A). Upon receiving this application, the Board must determine whether it can resolve the issue “solely on the basis of the records maintained by the board ….” R.C. 3503.24(B). If it cannot resolve the issue this way, the Board must conduct a hearing within ten days of the filing of the application. The Board must issue its decision immediately upon conclusion of the hearing, and the precinct registration list must be corrected accordingly. Id. ; R.C. 3503.24(C). This is the same procedure available to a voter to protect his or her existing registration when it is challenged under R.C. 3503.24(A). Apart from re-registration, this is the only procedure empowering voters to protect their registrations from being cancelled.

However, a provisional ballot cast by a voter whose registration was cancelled may be counted, but only at the mercy of the provisional ballot-counting official who “determines [whether] … the individual is eligible to vote” in the process defined by R.C. 3505.181(B)(4).

11. What procedure has the state adopted to notify voters whether their provisional ballots were counted; what procedures if any has the state adopted to notify the public of the percentage of provisional ballots that have been rejected as ineligible and the specific ground for this rejection?

Voters can learn whether their vote counted by using a toll-free hotline. Information about the overall vote may be found online.

When voters cast a provisional ballot, they will be given written information about procedures they can use to find out whether it was counted. 3505.181(B)(5)(a). One procedure that must be available is a toll-free telephone number voters can use to determine whether their ballots were counted and, if not, then why. 3505.181(B)(5)(b). The toll-free hotline will also provide information explaining “how to contact the board of elections to register to vote or to resolve problems with the individual’s voter registration.” Id.

No later than one month after canvassing is completed, the Secretary of State’s office shall publish a report on its website breaking down the number of cast and counted absentee and provisional ballots. 3501.05(X).

12. What types of regulations apply to third-party organizations and individuals who wish to help register voters?

Third-party organizations that help register voters must meet new requirements that became effective on June 1, 2006.  The rules differ depending on whether the individual in question is a compensated or uncompensated registrar.  A compensated registrar is a “person who receives or expects to receive compensation for registering a voter.”  R.C. 3503.29(A).

These rules apply to compensated registrars only:

Before engaging in registration activity, compensated registrars must complete an online training program prescribed by the Secretary of State.  R.C. 3503.29(A).  Second, compensated registrars must register with the Secretary of State using forms prescribed by that office.  R.C. 3503.29(B).  Third, they must complete and sign a separate affirmation form that states they have followed all the proper procedures and will follow the election laws.  R.C. 3503.29(C).  They must submit a copy of the signed affirmation each time they turn in completed registration forms to the state for processing.  R.C. 3503.29(D).  They must repeat this entire process each year they engage in registration activity.

Voter registration organizations cannot tie the pay of compensated registrars to the number of registrations obtained, but must pay only on “the basis of time worked.”  R.C. 3599.111(B)-(D).

These rules apply to all registrars:

Judging by the plain language of the statutes, the following rules apply to both compensated and uncompensated registrars.  However, the Ohio Secretary of State has issued an advisory that appears to claim that uncompensated registrars are exempt from many of them.  Advisory 2006-05.

Registrars will not “knowingly destroy, or knowingly help another person to destroy, any completed registration form.”  R.C. 3599.11(B)(1).  Registrars shall not “knowingly fail to return a registration form entrusted to that person to the Secretary of State or a board of elections within ten days after the registration form is completed.”  R.C. 3599.11(B)(2)(a); 3599.11(C)(1).  Furthermore, a registrar to whom a form is entrusted within forty days of an election must return that form to an appropriate agency within thirty days of the election, unless the form was entrusted “within twenty-four hours of the thirtieth day before the election.”  Id.  In that case, the registrar must return the form within ten days of its receipt.

Furthermore, it appears registrars must return completed forms directly to the appropriate agencies, not through another entity:  “[N]o person who helps another person register … shall knowingly return any registration form entrusted to that person to any location other than any board of elections or the office of the secretary of state.”  R.C. 3599.11(B)(2)(b); 3599.11(C)(2).

UPDATE:  In Project Vote v. Blackwell, the court enjoined elections officials from enforcing many of the requirements listed above in the period leading up to the November 7, 2006, election.  Specifically, the court enjoined the registration and training requirements, the requirement that registration forms be returned directly to the state, and the requirement that registrars disclose their names.  In response, the Secretary of State issued Advisory 2006-06.

 

Identification

13. What is the last date for the submission of new registration forms, and what ID must be submitted with these forms?

The deadline is thirty days before the election. No ID is required.

In order to register in time for an upcoming election, a voter must submit a properly completed registration application that is postmarked no later than the thirtieth day preceding the election. R.C. 3503.19(A). Voters who submit a registration application using a method other than mail are guaranteed the right to vote in any upcoming election as long as that application is received by the proper entity at least thirty days before the election. R.C. 3503.19(A). These requirements track language in Article V, Section 1 of the Ohio Constitution that provides Ohio residents who have been registered for at least thirty days are entitled to vote at all elections.

For an unknown reason, the website of the Secretary of State identifies October 10, 2006 (twenty-eight days before the election), as the date that voter registration ends.

Voters do not need to present any identification in order to register.

14. What ID must be submitted at the polls to cast a regular rather than provisional ballot?

Voters must submit a photo ID, military ID, utility bill, bank statement, government check, paycheck or certain types of government documents.

To cast a regular ballot, a voter at the polls must present one of six forms of ID: (1) current and valid “photo identification,” (2) a military identification that shows the voter’s name and current address, (3) a current utility bill, (3) a current bank statement, (4) a current government check, (5) a current paycheck or (6) a current government document that shows the name and current address of the voter (but certain types of notices mailed by the Board of Elections under R.C. 3503.19 cannot be used) “that shows the name and current address of the elector.” R.C. 3505.18; Advisory 2006-05.

“Photo identification” is specifically defined by the law to mean identification that was issued by the federal government or Ohio and that includes (a) the individual’s name, (b) current address, which must be the same as in the poll book, (c) a photograph of the individual, (d) an expiration date that has not passed. R.C. 3501.01(AA). However, the definition includes an exception to the current address requirement (b) for Ohio driver’s licenses and state ID cards: These may constitute “photo identification” regardless of whether they contain a current address and regardless of whether the address listed matches that contained in the poll book. R.C. 3501.01(AA)(2).

Voters who do not present one of these six forms of ID cannot cast a regular ballot and must use a provisional one.

Special requirement for voters whose notices of election were returned undeliverable

In order to cast a regular ballot, voters will have to present ID with current address information if the Board sends them notice of the election under R.C. 3501.19 and that notice is returned to the Board undeliverable. The language of the statute suggests this is true regardless of whether the voter presents a driver’s license or state identification card, which ordinarily will be accepted even with an old address.  However, the Secretary of State has not issued any materials on this point, so what officials are actually doing in practice is unclear.

Until the 2008 general election, R.C. 3501.19 requires Boards to mail out notice to each registered voter sixty days before each federal election stating the date of the election, the voter’s polling place, and what ID is required. It does not require notice to voters who register within thirty days of an election. If the notice is returned undelivered, a mark will be placed next to this voter’s name in the poll book, and if the voter presents ID with non-current address information at the polls, he or she “shall be permitted to vote by provisional ballot ….” R.C. 3501.19(C).

Interested readers should also see the following previous post from the EL@M team.

UPDATE:  On November 1, 2006, the Secretary of State and voters’ rights groups in NEOCH v. Blackwell reached a settlement clarifying what ID is required of voters at the polls.  The settlement stipulated that the “photo identification” required at the polls must conform to the name in the poll list, must show current address that conforms to the address in the poll list (except that driver’s licenses and state ID cards may show former addresses), and must include an expiration date that has not passed.  The settlement does not state, as the Secretary of State had previously stated, that driver’s licenses or state ID cards with former addresses will only be accepted if the voter also allows officials to record the last four digits of the voter’s driver’s license or state ID card number.

The settlement also stipulated that, in order to be considered “current,” other forms of identification allowed by the statute must be dated within the past year.  It stipulated that “utility bills” include, but are not limited to, water, sewer, electric, natural gas, cable, internet, telephone, and cellular telephone bills.  Finally, it stipulated that “government document” for purposes of ID means “any document that has current address and is issued by an appropriate governmental entity.”  Consent Order at 6.  Government documents include, but are not limited to, “those documents issued by all branches of local governments (including city, municipal, county, township, and village governments), all branches and political subdivisions of the State of Ohio (including public colleges or universities, public community colleges), and all branches of the United States government.”  Id.

The revised directive issued as part of the settlement emphasizes that its terms apply only to the November 7, 2006, elections.  Directive 2006-84, page 2.

 

15. What ID is necessary to receive an absentee ballot? What ID must be submitted when casting an absentee ballot in order for it to count?

Voters must submit their driver’s license numbers, the last four digits of their social security numbers, or a copy of their photo ID’s to obtain a ballot.  Furthermore, they used to have to submit this information to cast absentee ballots as well, but the enforcement of that rule was enjoined.

Obtaining an absentee ballot

A voter requesting an absentee ballot must submit one of three things with the request: A photocopy of at least one of the forms of ID required to cast a regular in-person ballot, the voter’s driver’s license number, or the last four digits of the voter’s social security number. R.C. 3509.03(E).

Casting an absentee ballot

R.C. 3509.05(A) states that voters must include one of the three aforementioned forms of identification with the voter’s completed absentee ballot.  The rule provides that if the Board receives an incomplete absentee ballot application, it shall promptly notify the applicant of the information necessary to complete it. R.C. 3509.04.  However, a settlement between the state and voters’ rights groups in NEOCH v. Blackwell removed this requirement.  The revised directive states that “County Boards of Elections shall accept and count any absentee… ballot… if that ballot has the voter’s name, address, date of birth, and signature….”  Directive 2006-84 at 1.  It goes on to say that “County Boards of Elections shall count these ballots even if they do or do not contain the driver’s license number, the last four digits of the voter’s social security number, or other statutorily recognized forms of identification (i.e., incorrect number such as transposed numbers).”  Id.

However, the revised directive issued as part of the settlement emphasizes that its terms apply only to the November 7, 2006, elections.  Directive 2006-84, page 2.

For more information, see this previous post from the EL@M team.

 

Registration/Voter Eligibility

16. In what circumstances if any are previously convicted felons eligible to vote?

Felons who have completed their prison sentences may vote.

A person convicted of a felony under federal or state law may not vote in Ohio while incarcerated. R.C. 2961.01. However, when a felon is “granted parole, judicial release, or a conditional pardon or is released under a non-jail community control sanction or post-release control sanction,” he or she may vote. Also, felons may continue to vote upon “final discharge.” Id. Felons may vote if they are pardoned.

A person convicted of any two of the election crimes outlined in R.C. 3599 has committed a fourth degree felony and loses the right to vote. R.C. 3599.39. According to the Secretary of State, disenfranchisement under this section is permanent. However, the basis for this interpretation is unclear.

People who sell their votes or agree to register to vote in return for anything of value commit a fourth degree felony and lose their right to vote. R.C. 3599.02.

17. In what circumstances, either prior to or on Election Day, may the eligibility of a registered voter be challenged by another voter or by an election officials? If challenged, what opportunity does the registered voter have to defend his or her eligibility, and is the consequence of an unsuccessful defense the obligation to cast a provisional ballot, or the denial of any ballot altogether?

Any voter may challenge any other voter at any time twenty or more days before the election. Only election judges may challenge voters at the polls. The defenses available to the challenged voter differ depending on what procedure is used to challenge the voter.

Any qualified voter in a county may challenge the right to vote of another voter in that county by filing with the local Board of Elections a special challenge form prescribed by the Secretary of State. R.C. 3503.24(A). The form must state the reasons for the challenge and must be filed no later than twenty days before the election. If the Board, solely on the basis of its own records, is able to determine a voter’s registration should be cancelled, then the Board may cancel that registration. R.C. 3503.24(B). The law does not explicitly require any notice of this decision. If the Board is not able to resolve the challenge solely on the basis of its own records, it must schedule a hearing and give notice of the hearing to the voter whose registration is challenged. At the hearing, the challenged voter will have the right to testify on his or her own behalf, to call witnesses, and be represented by counsel. The challenged voters may require witnesses to attend by requesting that the Board issue subpoenas, which the Board must issue upon such request. The Board shall issue its decision “immediately after hearing.” Id.

If the challenge successfully disenfranchises the voter, the voter still may cast a provisional ballot under R.C. 3505.181(A)(7).

Voters and other citizens used to be able to challenge voters on Election Day, but the provision allowing that practice was removed by HB3. However, a judge of elections still may challenge a voter at the polling place. R.C. 3505.20. In this case, the election judge will interview the voter to determine whether he or she is entitled to vote. These challenges may attack an individual’s right to vote based on lack of citizenship, failure to reside in the state thirty days prior to voting, lack of residence in the precinct, lack of voting age, or other matters. If the judge is satisfied with the voter’s answers, he or she will allow the voter to cast a regular ballot. If the judge is not satisfied with the answers, the voter may cast a provisional ballot and attempt to cure any perceived deficiencies by providing information to the Board of elections under R.C. 3505.181(B)(8).

Election judges not only can, but probably must, challenge a voter when they suspect something is amiss. In Maschari v. Tone, 103 Ohio St.3d 411, 2004-Ohio-5342, the Supreme Court of Ohio determined that a Board of Elections that instructed its officials in a closed primary to refrain from challenging voters’ party affiliations caused an “irregularity” that, if linked to a change in the outcome of the election, would be sufficient to state an election contest claim. Id. at ¶ 31. However, that holding may be limited to the context of primaries, as the court drew particular attention to the way that the Board’s instructions “potentially changed the essentially closed primary into an unconstitutional open primary.” Id. at ¶ 30.

The Secretary of State is currently involved in litigation concerning whether the ability of election judges to challenge the citizenship of voters at the judges’ discretion violates voters rights under the US Constitution and the Civil Rights Act of 1964.

Update:  The Secretary of State has instructed election officials to refrain from requiring documentation of foreign-born voters whose right to vote is challenged on the basis of citizenship.  Officials are instructed to simply ask the voter whether he or she is a citizen and, if the voter answers yes, to allow the voter to vote. Directive 2006-72.  Issuance of the directive was prompted by litigation in Boustani v. Blackwell.

Absentee/Early Voting

For information regarding the Secretary of State’s interpretation of the absentee voting laws, see Advisory 2006-01.

18. What if any specific need must a voter assert in order to receive an absentee ballot (or to vote early)? What are the earliest and latest dates by which a voter can submit an absentee ballot by mail, or in person?

Any voter can cast an absentee ballot. The deadline for requesting such a ballot is noon on the third day before the election, and the completed ballot must be received by the close of polls on Election Day.

Ohio has “no fault” absentee voting, meaning that voters may request, obtain and cast an absentee ballot without stating any reason. R.C. 3509.03. Apart from its absentee procedure, Ohio has no separate early voting procedure. Applications for absentee ballots must be delivered to the director of elections no earlier than January 1 of the election year or no earlier than ninety days before the election, whichever is earlier. R.C. 3509.03(I). They also must not be delivered any later than noon of the third day before the election or (if delivered in person) any later than close of business on the day before the election.

In general, completed absentee ballots must be delivered to the director of elections “not later than the close of the polls on the day of election.” R.C. 3509.05(A). However, overseas absentee ballots need only be received on or before the tenth day after the election for which they were cast. R.C. 3509.05(B). These ballots must also be signed and postmarked no later than the day of the election. In a Presidential election, overseas ballots need only be received on or before the twentieth day after the election. R.C. 3509.05(C).

The statute does not state whether there is a deadline before which ballots received will be considered “too early” and will not be counted. However, the ballots need not be made available to voters until thirty-five days before the election (twenty-five for Presidential elections). R.C. 3509.01.

19. If it were discovered that supporters of the winning candidate had paid (or otherwise improperly induced) voters to cast their absentee ballots for that candidate, and the number of “bought” absentee ballots exceeded that candidate’s margin of victory, would the state judiciary invalidate the election result and rule the runner-up to be the rightful winner?

Yes. Ohio courts are reluctant to overturn the results of an election, but will do so if the person contesting the result shows “‘by clear and convincing evidence that one or more election irregularities occurred and that the irregularity or irregularities affected enough votes to change or make uncertain the result of the … election.'” Crane v. Perry Cty. Bd. of Elections, 2005-Ohio-6509 ¶ 22 (2005). Purchasing votes would certainly qualify as an “election irregularity” and, if the irregularities made up the margin of victory, they would affect enough votes to at least make the election uncertain. R.C. 3515.14 provides that upon completion of trial in an election contest, “the court shall pronounce judgment as to which candidate was nominated or elected ….” Id.

There are two exceptions to this. The first is an election contest for a seat in the Ohio General Assembly. In this case, a court would not name the new winner, but would forward the trial testimony to the General Assembly, which determines its own members. The second is, if the court determines “no person was elected” (for instance, if the election was invalidated). Id. In that case, the election will be set aside.

20. (A) What are the procedures for counting absentee/early ballots, as opposed to regular ballots?

The Board of Elections must choose to count absentee ballots in each precinct, at the office of the Board, or at some other designated location. R.C. 3509.06(A). The procedures that apply differ depending on what choice the Board makes.

If the Board chooses to count the ballots in each precinct, the Board will deliver to each precinct judge all absentee ballots received within the relevant deadline and a list of names and addresses of all voters in that precinct who received an absentee ballot. R.C. 3509.06(B). After the precinct judges count the ballots, they will give their count along with the ballots and other materials back to the Board, which “canvass” (review) the returns submitted. R.C. 3505.32. This is the same “official canvass” that applies to regular ballots after precinct counting and generally must be completed on the twenty-first day after the election.

If the Board chooses to count the ballots at the central office or another location, the Board will appoint special election judges to count the ballots. R.C. 3509.06(C).

To count a ballot, officials will look at the ballot envelope and compare the signature on the envelope with the signature on the voter’s registration form. R.C. 3509.06(D). At that time, any precinct official may challenge the ballot for any reason. If no official challenges the ballot, the judge shall count it. If an official challenges the ballot and the challenge “is sustained,” the judge will not open the envelope, but mark it “Not Counted” and return it to the director of the Board of Elections. The statute does not state when a challenge should be sustained. The judge will also mark the reason why each “Not Counted” ballot was not counted. R.C. 3509.07.

20. (B) Who, if anyone, can observe the counting of absentee ballots?

Election officials and appointed observers may observe the counting of absentee ballots. R.C. 3509.07(F). Any political party or group of five candidates may appoint an observer by filing the proper notice under R.C. 3505.21. That code section also prohibits other people from being present during ballot-counting except by request of the Board of Elections. The same rule applies to counting of regular ballots.

20. (C) On what grounds may election officials reject an absentee ballot as ineligible for counting?

R.C. 3509.07 provides that an absentee ballot will not be accepted or counted if any of the following seven situations apply:

1. the statement accompanying the ballot is insufficient;
2. the signature on the ballot envelope does not correspond to the signature on the voter’s registration card;
3. the applicant is not a qualified elector in the precinct;
4. the ballot envelope contains more than one ballot of any one kind;
5. the ballot envelope contains any voted ballot that the elector is not entitled to vote;
6. Stub A (an anti-fraud measure that is compared to Stub B) is detached from the absent voter’s ballot;
7. the elector has not included the identification information required by R.C. 3509.05 (driver’s license number or last four digits of SS# or copy of ID).

In addition, election officials can challenge an absentee vote for any reason that any vote can be challenged.

If election officials disagree on how a ballot should be counted, they will put the question before the Board and Board may settle the question if three out of the four of them agree on how to treat the ballot. R.C. 3505.27. If three out of the four cannot agree on how to treat the ballot, it will be placed in an envelope marked “Disputed Ballots.” The statutes do not say what will become of the disputed ballots.

UPDATE:  A settlement agreement in NEOCH v. Blackwell suspended R.C. 3509.05’s identification requirement with respect to returned absentee ballots for the November 7, 2006, election ((7), above).  For that reason, officials should not reject an absentee ballot just because the voter failed to include ID (see question 15).

20. (D) What notification, if any, must the election officials provide—either to the voters who cast these ballots or to the public—that these absentee ballots were rejected?

The statute does not provide voters a procedure to discover whether their absentee ballots were counted. However, it also does not prohibit officials from developing such a procedure. Nevertheless, at this time, officials have not developed such a procedure, and voters cannot know whether their absentee ballot was counted.

In contrast, R.C. 3505.181(B)(5)(b) requires officials to set up a toll-free number voters can call to discover whether their provisional ballot was counted.

R.C. 3501.05(X) states that the office of the Secretary of State will publish on its website no later than one month after the election the number of provisional and absentee ballots cast and counted in each county.

21. What pre-certification procedures, if any—in other words, separate from post-certification judicial contest of the outcome of the election itself—exist for disputing the exclusion of absentee ballots?

None.

Ohio has no procedure to dispute the exclusion of absentee ballots aside from a post-certification election contest. The best concerned parties can do is appoint an observer to observe the ballot-counting under R.C. 3505.21. While there is nothing to prevent this observer from expressing an opinion, observers have no formal power to contest whether a ballot is counted. See R.C. 3505.27.

22. Under what circumstances if any may a voter who has requested an absentee ballot nonetheless cast a regular or provisional ballot at the polling place on Election Day? (Only when the voter has not received the requested absentee ballot, or for another reason, such as the voter wishes to change a vote from one candidate to another?).

If a voter requests an absentee ballot, the Board of Elections should place a mark in the poll book next to the name of that voter. R.C. 3509.09. If the voter later appears in person to vote, he or she may cast a provisional ballot under 3505.181(A)(5), but not a regular ballot. This is true regardless of whether the voter received and cast the absentee ballot requested.

23. What procedures if any does the state have for preventing double-voting by a voter who has cast both an absentee and an in-person ballot?

As stated above, no voter who requested an absentee ballot will be allowed to cast a regular ballot. In addition, any provisional ballot the voter casts will not be counted unless the absentee ballot was never received or was found deficient.

If a voter casts both a provisional and an absentee ballot, officials will examine the absentee ballot first. R.C. 3509.09(C)(1). If the signature on the absentee ballot envelope matches the signature on the voter’s registration card, they will count the absentee ballot and will place a mark in the pollbook next to the voter’s name to indicate the absentee ballot was counted. Id.; 3509.06(D). At that point, they will not count any provisional ballot cast by that voter. R.C. 3505.183(B)(4).

If the officials question the validity to the absentee ballot, they will set it aside and will examine the pollbook to determine whether the voter cast a provisional ballot. R.C. 3509.09(C)(1). If the individual cast a provisional ballot, the officials will decide whether to count it using the ordinary provisional ballot rules. If they decide to count the provisional ballot, they will not open the absentee ballot envelope and will mark the envelope “Not Counted” and state the reason why it was not counted. R.C. 3509.09(D). The statute does not say what will happen to the absentee ballot if the officials decide not to count the provisional ballot, but presumably it will be handled under the ordinary absentee ballot-counting rules.

Poll Workers/Polling Procedures

24. Who may observe the voting process at polling places on Election Day?

Only specially appointed observers.

Aside from police and election personnel, only observers appointed by candidates under R.C. 3505.21 may observe elections. R.C. 3501.35(B). A political party or group of five voters may appoint such an observer by notifying the Board at least eleven days prior to the election of the observer’s names, addresses, and the precincts where they will serve. R.C. 3505.21 also includes a process that committees advocating ballot issues may use to appoint observers. No person shall loiter or congregate in the polling place. R.C. 3501.35(A)(1).

The Secretary of State has issued a directive instructing local officials to allow exit polling within 100 feet of polls.  Directive 2006-75.  The issuance of this directive was prompted by litigation in ABC v. Blackwell.

25. What procedures and protocols, if any, does the state have in place to assure that poll workers and other local election officials follow statewide rules uniformly and do not engage in county-by-county, or even precinct-by-precinct, variation in the administration of rules concerning voter eligibility and the counting of ballots?

The Secretary of State will prescribe and the local Board of Elections shall establish a training program that all election officers must complete before working at polls. R.C. 3501.27. Election judges will complete this training program every three years of service, and presiding election judges will complete it every other year. Training will occur sixty days prior to the election. There is nothing to prohibit the local Boards from varying the program prescribed by the Secretary of State, so not all training program will necessarily be identical.

The Secretary of State will establish a training program for members of the local Boards of Elections and their employees. R.C. 3501.27. These individuals will complete the training program within six months of assuming their positions, and will complete it again once every four years or more, as determined by the Secretary of State.

The Secretary of State’s office is currently in litigation concerning its alleged failure to adequately train poll workers and ensure they operate on uniform procedures.

26. (A) What rules exist determining the number of voting machines?

R.C. 3506.12 states that the local BoE “shall arrange for a sufficient number … [of voting machines and other equipment] to accommodate the number of electors in each precinct as determined by the number of votes cast in that precinct at the most recent election for the office of governor….” The language seems to indicate the decision is left up to the experience and judgment of the local Boards.

26. (B) What rules exist to determine the number of poll workers?

For the most part, Ohio leaves personnel decisions up to the local Boards of Election. R.C. 3501.22 provides that the Board of Elections will appoint four election judges to each precinct (if necessary, the Board may appoint more than four under R.C. 3506.12). Not more than one-half of the total number of judges shall be members of the same political party. R.C. 3501.22(A). The Board may also designate as many lower election officers as are necessary to operate each precinct polling place. Those personnel decisions are left up to the Boards of Elections. Unlike with voting machines, the code does not include an explicit requirement that the Board supply a “sufficient” number of poll workers.

26.(C) What rules exist to determine the number of provisional ballots?

R.C. 3501.30 provides that the Board of Election shall provide each polling place with the necessary supplies, including provisional ballots. It also provides that in so doing, the Board shall follow instructions provided by the Secretary of State.

26. (D) What additional procedures, if any, are in place to avoid long lines at polling places?

There are few statutory provisions that would mitigate long poll lines. R.C. 3505.23 provides that no voter may spend more than five minutes casting a ballot. This provision may help to speed lines along. In addition, any delays caused by inadequate supplies should be ameliorated by R.C. 3505.17, which provides the Board of Elections shall cure such shortages as speedily as possible.

If voters are still waiting in line at the close of polls, officials will keep the polls open until those voters have cast their ballots. R.C. 3501.32. However, the statute does not require that officials keep the polls open for voters who get in line after the close of polls. This does not necessarily mean that the courts are without power to keep polls open late: In the May, 2006, primary, Judge Nancy McDonnell of the Cuyahoga County Court of Common Pleas ordered one polling station that opened late to stay open an additional two hours.

OAC 111:5-1-01 provides that electronic (DRE) voting machines will be designed so that poll workers will not have to replace the machine’s ink or paper more than once during the polling hours.

Also, election officials should be aware that inefficient operation of polling places may lead to litigation. In League of Women Voters v. Blackwell, 432 F.Supp.2d 723 (2005), the Northern District of Ohio stated that long lines and failure to provide a sufficient number of trained poll workers could give rise to a cause of action under the Equal Protection Clause of the US Constitution. Id. at 728.

UPDATE:  On November 3, 2006, plaintiffs in KLBNA v. Blackwell filed a motion to attempt to require the state to furnish absentee ballots to voters waiting in long lines.

26. (E) What contingency plans are in place if poll workers are unable to get voting machines to work according to their instructions? If poll workers do not report for duty on Election Day?

In past elections, the Secretary of State has instructed polling locations to immediately notify the Board of Elections if any poll worker fails to appear for work at the appointed time. See Advisory 2006-04.

The code does not contain any contingency plan as insurance against voting machine failure. It is unknown whether the Secretary of State or local Board have promulgated rules to deal with this possibility.

27. What rules are in place to ensure that disabled voters are able to cast a ballot at their polling places on Election Day?

Disabled voters are guaranteed polling places and machines they can access, and may obtain assistance in physically signing their names and casting absentee ballots.

R.C. 3501.29 states that the Board of Elections shall ensure all the following:

1. that polling places are free of barriers to handicapped people;
2. that a certain minimum number of handicapped parking places are available;
3. that polling places have a nonskid ramp;
4. that polling place doors are at least thirty-two inches wide.

However, certain polling places may obtain an exemption from these requirements if they show a good faith, but unsuccessful, attempt to meet them. At these polling places, disabled voters have a right to cast a ballot out of their car at curbside or to cast a ballot at the door to the polling place.

Before each election, the director of each board of election will sign a statement verifying that these requirements have been met.

In addition, R.C. 3501.382 allows disabled voters who are physically unable to sign their names to appoint an “attorney in fact” to sign for them by filing an appropriate form with the Board of Elections.

R.C. 3506.19 requires each polling place to furnish at least one DRE (direct recording electronic) voting machine that is accessible to disabled voters, including the blind.

In addition, disabled voter who experience a medical emergency may file an application to obtain and cast an absentee ballot under R.C. 3509.08. Just like any other absentee ballot request, this application may be submitted any time between the nineteenth day before the election and noon on the third day before the election. However, unlike with standard ballot requests, disabled voters, if unable to cast a ballot on their own, may request that officials assist them in marking their ballots.

28. In the event that problems arise on Election Day, who determines whether to keep polls open later than originally planned and what rules, if any, guide this determination?

R.C. 3501.32 provides that polls will open at 6:30 in the morning and will close at 7:30 p.m. If voters are still waiting in line at 7:30, officials will keep the polls open until those voters have cast their ballots. However, the statute does not require that officials keep the polls open for voters who get in line after 7:30 p.m.

In the May, 2006, primary, Judge Nancy McDonnell of the Cuyahoga County Court of Common Pleas ordered one polling station that opened late to stay open an additional two hours, and that order was respected.

29. (A) What rules if any does the state have to require election officials to notify voters of their correct polling places?

Boards must notify voters of their polling places by mail and by publication, and also must make this information available online.

Boards of Election must send a notice specifying the proper polling place to all registered electors sixty days before any August, 2006, special election, the 2006 general election, and the 2008 primary and general elections. R.C. 3501.19. However, Boards need not notify voters who registered within thirty days of when the Board sends out the notice.

Six weeks before an election, the Board shall publish information in a local newspaper about the dates, times, and locations for voting. R.C. 3503.12.

If precinct boundaries change, the Board shall change voters’ registrations to reflect this and notify the voters by mail. R.C. 3503.17, 3501.21.

Thirty days before every election, the Secretary of State must publish a website interface on the internet that allows voters to search for their polling location. R.C. 3503.15.

Finally, whenever a voter submits a registration application and the Board accepts it, the Board must send that voter a notice of proper polling place under R.C. 3503.19(C)(1)(b).

29. (B) What remedies exist, if any, in the event that officials fail to comply with such rules?

No remedies exist, in the legal sense of the word. However, if a voter appears to vote at the wrong polling place, officials shall direct that voter to the proper location and provide the phone number for the Board of Elections. R.C. 3505.181(C)(1). If that voter still desires to vote at the current location, officials shall allow the voter to cast a provisional ballot, but shall inform the voter that it will not count if it is cast at the wrong location. The provisional ballot will not be counted if the individual is not registered and eligible in that precinct, and will not be counted if the individual’s registration and eligibility cannot be established upon examination of the Board’s records. R.C. 3505.181(C)(2).

Provisional Voting

30. Who cannot cast a regular ballot at the polls, but may cast a provisional ballot?

Voters whose names do not appear on the rolls, who do not present proper ID, who requested an absentee ballot, whose notice of registration was returned undeliverable, who are challenged, whose signatures do not match those in the polls, or who have moved or changed their names.

R.C. 3505.181 provides the following individuals may cast a provisional ballot:

1. individuals whose names do not appear on the official precinct list of eligible voters;
2. individuals who fail to present proper ID (regardless of whether they have an ID at home, regardless of whether they provide social security information at the polls, and regardless of whether they complete an affirmation form at the polls that says they have neither an ID nor a social security number);
3. individuals who previously requested an absentee ballot (called an “absent voter’s ballot” in the Code) for the current election;
4. individuals whose notification of successful registration was returned undeliverable;
5. individuals challenged by an election judge at the polls, if the judges determine that person is ineligible or cannot make up their minds as to eligibility; also, in a primary, individuals challenged based on party affiliation if those individuals fail to make a statement of party affiliation and the judges determine they are not affiliated with the political party whose ballot the individual desires to vote;
6. individuals whose right to vote has been challenged by another elector under R.C. 3503.24, but only when the Board postpones decision on this challenge until after the election;
7. individuals who have changed their names;
8. individuals who have moved from one voting precinct to another;
9. individuals whose signature does not match that in the poll book, according to election judges.

Note that, under 2., the Secretary of State recently interpreted Ohio law to require voting of a provisional ballot for in-person voters who present a driver’s license or state identification card without current address, except where the voters provide the last four digits of their driver’s license numbers or state identification numbers (social security numbers would not be sufficient).  Directive 2006-78.  The consent order reached in NEOCH v. Blackwell appears to do away with that requirement so that voters may vote without giving out this information.  Consent Order, page 3.

31. When will a provisional ballot be counted?

How to treat a provisional ballot is determined by very complex rules.

Before it can count (or decide not to count) a provisional ballot, the local Board of Elections must first determine whether the person who cast that ballot was properly registered to vote. R.C. 3505.183(A)(3)(a), (A)(4)(a)(i). To make this determination, the Board must look at three pieces of evidence. First, the Board must examine its own records under R.C. 32505.183(B)(1). Second, it must examine the “affirmation” that accompanies the provisional ballot. The affirmation is a form provisional voters must fill out when casting their ballot that contains the voter’s name and signature and a statement that the voter is registered and eligible to cast a ballot in the current election and jurisdiction. R.C. 3505.183(B)(1)(a)-(c). Third, the Board must examine any additional information written by the voter on the affirmation, any information provided by the voter to certain election officials, and any relevant information provided by anyone to the board of elections within ten days of the election. R.C. 3505.183(B)(2). There is no requirement that the Board examine any other evidence or communicate with any other office to determine whether a provisional voter is properly registered to vote. In fact, the law does not even explicitly state that the Board must examine the central voter registration database managed by the Secretary of State under R.C. 3503.15, although there is nothing to prohibit it from doing so.

Under R.C. 3505.183(B)(3), after examining the required information, the Board shall count a provisional ballot if it determines that all of these apply:

1. the individual is properly registered to vote;
2. the individual is eligible to cast a ballot in this precinct and election;
3. the individual provided all the information required on the affirmation form required by 3505.183(B)(1):
   1. the individual’s name and signature;
   2. a statement that the individual is registered and eligible to vote in this election and precinct;
4. if the individual at the poll failed to provide proper ID and failed to provide the last four digits of a social security number, the voter provided one of the following to the Board within ten days of the election:
   1. proper ID;
   2. the last four digits of the voter’s social security number;
   3. a completed form permitted by 3505.18(A)(4) that indicates the voter at the time of voting did not have ID or social security information available;
5. if the if the individual was challenged by an election judge under 3505.20 and the judge determined the individual was not eligible or registered to vote or was unable to make a determination, the provisional vote will count if within ten days of the election the individual provides any documentation necessary to withstand the challenge. These challenges may attack an individual’s right to vote based on lack of citizenship, failure to reside in the state thirty days prior to voting, lack of residence in the precinct, lack of voting age, or other matters. R.C. 3505.181(B)(8).
6. if applicable, the individual won a challenge hearing challenging the individual’s right to vote under R.C. 3503.24(B).

Under R.C. 3505.183(B)(4), after examining the required information, the Board shall not count provisional ballots if it determines that any of these apply:

1. the individual is not properly registered to vote (or the Board cannot determine whether the individual is registered);
2. the individual is not eligible in this precinct or election (or the Board cannot determine whether the individual is eligible);
3. the individual didn’t provide all the information required on the affirmation form required by 3505.183(B)(1);
4. the individual has already cast a ballot for this election;
5. if the individual at the poll failed to provide proper ID and failed to provide the last four digits of a social security number, the voter provided none of the following within ten days of the election:
   1. proper ID;
   2. the last four digits of the voter’s social security number;
   3. a completed 3505.18(A)(4) form that indicates the voter at the time of voting did not have ID or social security information available.
6. if the individual was challenged by an election judge under 3505.20 and the judge determined the individual was not eligible or registered to vote or was unable to make a determination, the individual failed to provide any documentation necessary to withstand the challenge brought by the election judge. R.C. 3505.181(B)(8).
7. the individual lost a challenge hearing challenging the individual’s right to vote under R.C. 3503.24(B);
8. “The individual failed to provide a current and valid photo identification, a military identification that shows the voter’s name and current address, a copy of a current utility bill, bank statement, government check, paycheck, or other government document, other than a notice of an election mailed by a board of elections under section 3501.19 of the Revised Code or a notice of voter registration mailed by a board of elections under section 3503.19 of the Revised Code, with the voter’s name and current address, or the last four digits of the individual’s social security number or to execute an affirmation under division (A) of section 3505.18 or division (B) of section 3505.1814 of the Revised Code.”

R.C. 3505.183’s requirement that the Board reject the provisional ballots of voters who fail to “provide all the information required on the affirmation form required by 3505.183(B)(1),” if strictly applied, would seem to conflict with R.C. 3505.28’s provision that “no ballot shall be rejected for any technical error unless it is impossible to determine the voter’s choice.” In the past, the Supreme Court of Ohio stated in dicta that R.C. 3505.28 would protect voters who failed to return their absentee ballots through the proper channels from having their votes invalidated. In re Election of Member of Rock Hill Bd. of Edn., 76 Ohio St.3d 601, 608 (1996). This may prove fertile ground for litigation.

If election officials disagree on how a ballot should be counted, they will put the question before the Board and Board may settle the question if three out of the four of them agree on how to treat the ballot. R.C. 3505.27. If three out of the four cannot agree on how to treat the ballot, it will be placed in an envelope marked “Disputed Ballots.” The statute does not say what will become of the disputed ballots.

Significantly, the code does not state that provisional ballots may be rejected solely for failure to provide proper ID. Rather, it indicates that the provisional ballots of voters who failed to provide ID at the polls will only be rejected when those voters also failed to provide social security information (either at the polls or within ten days of the election) and failed to provide a completed R.C. 3505.18(A)(4) form stating that they do not have proper ID or a social security number (either at the polls or within ten days of the election). The upshot is that presentation of proper ID is not required at any time for one to vote and have that vote counted. Instead, presentation of proper ID at the polls is only necessary to guarantee the right to cast a regular ballot.

UPDATE:  On November 1, 2006, the Secretary of State and voters’ rights groups entered into a consent order consistent with the above information.

32. If a new voter registration card is rejected because of incomplete information (signature missing, for example), and a provisional ballot is cast by that voter, in what circumstances (if any) will the state count that provisional ballot as a valid vote?

Officials will only count the provisional ballot if they decide the original registration card was improperly rejected.

Before it can count (or decide not to count) a provisional ballot, the local Board of Elections must first determine whether the person who cast that ballot was properly registered to vote. R.C. 3505.183(A)(3)(a), (A)(4)(a)(i). To make this determination, the Board must look at three pieces of evidence. First, the Board must examine its own records under R.C. 32505.183(B)(1). Second, it must examine the “affirmation” that accompanies the provisional ballot. The affirmation is a form provisional voters must fill out when casting their ballot that contains the voter’s name and signature and a statement that the voter is registered and eligible to cast a ballot in the current election and jurisdiction. R.C. 3505.183(B)(1)(a)-(c). Third, the Board must examine any additional information written by the voter on the affirmation, any information provided by the voter to certain election officials, and any relevant information provided by anyone to the board of elections within ten days of the election. R.C. 3505.183(B)(2). Officials will only count a provisional ballot if they determine, among other things, that the individual named on the affirmation included with the ballot was properly registered to vote. R.C. 3505.183(B)(3).

For more information on how provisional votes are counted, see When will a provisional ballot be counted?

33. (A) Who are the state officials that determine whether provisional ballots will count as valid votes? Are these officials elected, appointed, partisan, or non-partisan?

Appointed, partisan Board of Election members determine how to count provisional votes.

There are two parts to the provisional ballot-count process. First, the Board of Elections determines whether the ballot is “eligible” or “entitled” to be counted. Second, if the Board determines the ballot is eligible to be counted, the board will count it using the same procedures used to count ordinary ballots.

The law says that the Board of Elections shall perform the first part of the process. R.C. 3505.183(B). The Board of Elections consists of four partisan officials—not more than half from any single political party — appointed by the Secretary of State. R.C. 3501.06. The code should not be read to say that the Board members must personally determine how to treat every ballot; in all likelihood, the Board may designate staff members to do at least some of this work. R.C. 3505.183(C) requires “election officials” who determine how to treat a ballot to identify their name on the ballot envelope.

After the Board determines a provisional ballot is eligible to be counted, ballots will be counted “in full view of members of the board and witnesses.” R.C. 3505.27(A). The Board or Secretary of State may issue procedures contrary to this rule.

33. (B) Is this review of provisional ballots conducted in public or behind closed doors?

Behind closed doors. R.C. 3505.21 provides that only election judges, observers appointed by candidates or political parties, police officers, officials from the Secretary of State’s office and persons whose presence is requested by the Board of Elections may be present after closing of the polls. R.C. 3505.183(D) specifically states that appointed observers shall be allowed to be present when the board determines how to treat all provisional ballots.

33. (C) How soon after Election Day must this review of provisional ballots be complete?

No later than the twenty-first day after the election (or the thirty-first, in some cases).

Ohio law does not specify a deadline for when the Board must complete its determination of which provisional ballots are eligible to be counted. However, the law does state that Boards may not begin counting provisional ballots until all counties statewide have finished determining whether provisional ballots are eligible to be counted. R.C. 3503.183(D).

Canvassing of all ballots must be complete no later than the twenty first day after the election. R.C. 3505.32. However, in the case of a special election held on the day of a presidential primary election, canvassing need not be complete until thirty-one days after the special election.

33. (D) Is it subject to any form of administrative review or appeal?

No. Ohio law does not provide for any administrative review of the Board of Elections’ treatment of provisional ballots.

34. If a voter is required to cast a provisional ballot because the voter lacks required ID when going to the polls, how much time (if any) is the voter permitted to provide the necessary ID in order for the provisional ballot to count?

Ten or eleven days.

R.C. 3505.181(B)(8) provides that the voter must present the appropriate ID to the Board “during the ten days after the day of an election,” but R.C. 3505.181(B)(8)(a) provides the voter must present ID “within ten days after the day of the election.” The difference is important because, literally interpreted, the first one means ten days after the election, while the second one means eleven days after the election. A directive issued by the Secretary of State states that the voter must appear “within 10 days immediately after Election Day ….” Advisory 2006-05, p. 9.

Note that failure to provide proper ID within the applicable deadline will not in and of itself result in a rejected ballot. R.C. 3505.181(B)(8) says that provisional voters may cure failure to provide ID or social security information at the polls by doing “any of the following”: Providing acceptable ID within ten days or providing the last four digits of the voter’s social security number or providing a completed form that states the voter does not have either of these two types of information. This means that the provisional ballots of voters who failed to provide ID at the polls will only be rejected when those voters also failed to provide social security information (either at the polls or within ten days of the election) and failed to provide a completed R.C. 3505.18(A)(4) form (either at the polls or within ten days of the election). The upshot is that presentation of proper ID is not required at any time for one to vote and have that vote counted. Instead, presentation of proper ID at the polls is only necessary to guarantee the right to cast a regular ballot.

A June, 2005, directive issued by the Secretary of State’s office appears to agree with this position:

“1. If the elector cast a provisional ballot because the elector … could not provide … acceptable proof of the elector’s identity or the last four digits of the elector’s Social Security number, the elector must provide to the board of the elections one of the following:

1. Acceptable proof of the elector’s identity …; or
2. The last four digits of the elector’s Social Security number.”

Advisory 2006-05, page 9(emphasis added). This Advisory also provides that voters who do not provide ID or social security information at the polls because they did not possess at that time an ID or a social security number may ensure their votes are counted by executing an affidavit stating that they did not have this information.

35. If a previously registered voter has moved within the same state, but has not updated the voter’s registration, and if the voter casts a provisional ballot at the correct precinct for the voter’s new address, will the provisional ballot count?

The vote will only count if the voter moved within a precinct. If voters move from one precinct to another and fail to update their registrations prior to voting, they may cast provisional ballots but those ballots will not count.

When voters move, they must file a change of residence form with the state. R.C. 3503.16. They may comply with this requirement by filing the appropriate form at their new polling place on the day of election. However, this does not guarantee a voter’s right to vote right then and there. Rather, if these voters wish to vote right then and there, they must comply with certain procedures defined below. The type of procedure that applies is determined by whether the voter moves from one place within a precinct to another place within that precinct, moves from one precinct to another in the same county, or moves from one county to another.

Procedures for voters who move within a precinct:

Voters who move within a precinct and attempt to vote without having first filed a change of residence form will be allowed to vote a regular ballot, but only if they complete a change of residence form at the polls and provide the appropriate identification. R.C. 3503.16(B)(1)(a).

If the voter’s new address does not match that contained on his or her identification, a precinct election official shall note this in the poll list and take down the last four digits of the voter’s driver’s license or state ID card number. The voter will then be allowed to cast a regular ballot.

Procedures for voters who move from one precinct to another in the same county:

Voters who move from one precinct to another within the same county and attempt to vote without first having filed a change of residence form will not be allowed to cast a regular ballot and will only be allowed to vote a provisional ballot if they follow one of the following two procedures:

1. The first procedure comes from R.C. 3503.16(B)(2). Voters must do all of the following in order to cast their provisional ballot:
   1. appear no earlier than the twenty-eight days prior to the election at the new polling place or Board of Elections or other location designated by the Board (the voter may even appear on the day of the election);
   2. complete a change of residence form;
   3. vote a provisional ballot using the new address;
   4. sign a form stating that the voter moved, has voted a provisional ballot, and will not make any further attempts to vote in the current election.
2. The second procedure comes from R.C. 3503.16(G), and is available only to voters who are sick or disabled and cannot appear at the Board of Elections. These voters must do all of the following:
   1. file a written application that requests an absentee ballot;
   2. complete a notice of change of address and forward it together with the absentee ballot;
   3. sign a form that says they have moved, have voted absentee due to sickness or disability that prevents them from personally appearing at the board of elections, and will not make any further attempts to vote for the coming election.

Procedures for voters who move from one county to another:

Voters who move from one county to another and attempt to vote without first having filed a change of residence form will not be allowed to cast a regular ballot and will only be allowed to vote a provisional ballot if they follow one of the following two procedures:

1. The first procedure comes from R.C. 3503.16(C), the voter must do all of the following in order to vote:
   1. Appear at the Board of Elections or other designated agency (but not the polling place) no earlier than twenty-eight days before the election (the voter may even appear on the day of the election);
   2. file a notice of change of residence;
   3. cast a provisional ballot using his or her new address;
   4. sign a form that says the voter has moved, has cast a provisional ballot at the office of the board of elections, and will not attempt to vote at any other locations for that particular election.
2. The second procedure is the sick/disabled absentee procedure from R.C. 3503.16(G), described above.

Thus, the main consequences of failing to file a notice of change of address prior to voting is the inability to cast a regular ballot and, for voters who moved to another county, the requirement of voting at the Board or other designated place rather than the polls.

36.If a voter casts a provisional ballot at a precinct that is not the correct one for the voter’s current address, will the provisional ballot count?

No.

If voters desire to vote at the wrong precinct, officials shall warn them that they are in the wrong precinct and direct them to the correct one. R.C. 3505.181(C)(1). If the voter still wants to vote at the current precinct, officials shall allow the voter to cast a provisional ballot but will warn the voter that it will not be counted if this is indeed the wrong precinct. R.C. 3505.181(C)(2). The vote will not be counted if the voter is not properly registered and eligible to vote in that precinct. R.C. 3505.183(B)(4)(a)(ii). [top]

Recounts/Contests

37. What rules does the state have for protecting the chain of custody of ballots and voting counting equipment, and what remedies exist – including the possibility of ordering a new election – if those chain of custody rules are violated?

Ohio law contains detailed chain of custody rules for every step of the voting process.

If paper ballots are used, the company that prints any such ballots will seal them in packages, mark the number of ballots on the package and the destination precinct, and deliver them to the Board of Elections. R.C. 3505.15. The Board shall give the printer a receipt indicating the number of ballots and the destination precinct.

Before polls open, supplies and ballot boxes will be opened in the presence of precinct officials. R.C. 3505.16. These supplies will never be removed from the view of appointed observers until counting is completed and the counting certificate is signed by the judges.

When the polls close, Ohio requires precinct officials to count the number of electors who voted, count any unused or damaged ballots, and count the voted ballots. R.C. 3501.26. Precinct officials should record these figures in the poll books, as well as explain any discrepancies between the number of electors who voted and the number of voted ballots. Unused and damaged ballots should be put in special envelopes, and then the receiving officials—the officials in charge of collecting votes– shall deliver all of the voting materials to the counting officials. The receiving officials shall take a receipt to show the ballots changed hands, and shall immediately depart.

During the counting of ballots, precinct judges shall not separate from one another, nor shall they leave the polling place except from unavoidable necessity. R.C. 3505.29.

Counting of votes will be tallied on a worksheet that is later placed into the poll book and returned to the Board. R.C. 3505.27.

After all the votes are counted, precinct officials shall place the ballots in sealed containers provided by the Board. R.C. 3505.31. For the May 2, 2006 election, the Secretary of State issued a directive instructing poll workers that the ballot containers should include two locks, one that could only be opened by the Board director and another that could only be opened by the deputy director. Directive 2006-50. Poll workers shall also seal the poll book, tally sheet and other materials and deliver all of this to the Board. The code does not indicate that the Board shall give the precinct officials a receipt at this time. R.C. 3505.31.

The Board shall preserve all ballots for at least sixty days and, for federal elections, at least twenty-two months. R.C. 3505.31. After this point, the Board will destroy the ballots (or reset machines). However, the Secretary of State may order the Board to preserve ballots for longer than the mandatory period.

The Board shall also preserve the poll book, tally sheet and other materials from each polling place until vote-counting is completed in all precincts and the Board certifies abstracts to the Secretary of State. R.C. 3505.31. The Board will not permit anyone to break the seals on these materials or the ballot containers except for canvassing purposes. The Board will preserve these materials for two years after the election.

In counties that use machines, if officials need to use the machines to conduct another election before the mandatory period expires, the Board will recanvass the machines as if a recount were being held and certify the result to the Board. R.C. 3505.31. After this, officials may reset the machines.

No person shall have a ballot in his or her possession “except in the proper discharge of his duty in receiving, counting, or canvassing the votes.” R.C. 3505.25.

The only remedy available when the chain of custody rules have been violated is an election contest, which is the exclusive remedy “for the corrections of all errors, frauds and mistakes which may occur in an election.” State ex rel. Mackey v. Blackwell, 106 Ohio St.3d 261 ¶17 (2005)(citations omitted).

Update:  Beyond the mandatory two-year period, the Ohio Secretary of State has instructed local officials to preserve ballots, pollbooks and other election materials in accordance with rules issued by the local County Records Commissions.  Directive 2006-59. Around the time of the directive, voter rights groups disputing the 2004 Ohio elections processes sued in part to preserve the 2004 ballots.  KLBNA v. Blackwell.

38. Are losing candidates and their supporters permitted to contest the results of an election on the ground that ineligible ballots were included in certified total, even if it is unknown for which candidate those ineligible ballots were cast?

Probably, although Ohio courts have not specifically addressed this issue.

To contest an election, a party need only file in the appropriate court a petition under R.C. 3515.09 that sets forth “the grounds for such contest.” To set forth adequate grounds, the contestant must allege that election irregularities occurred that either affected the outcome of the election or made the outcome of the election uncertain. Crane v. Perry Cty. Bd. of Elections, 107 Ohio St.3d 287, 2005-Ohio-6509, ¶ 22 (2005). There is no explicit requirement that the contestant knows for certain at the time the petition is filed that irregularities occurred, or that they affected the outcome of the election.

39. How close must the result of a statewide election be in order for an automatic recount to occur?

The margin of victory must be less than a quarter of a percent for statewide elections, and less than half a percent in other elections.

An automatic recount will occur in a statewide election unless the victorious candidate won the election by a margin of one-fourth of one per cent or more of the total vote. R.C. 3515.011. In municipal or district-wide elections, an automatic recount will occur unless the victorious candidate won by a margin of one-half of one per cent or more. The Secretary of State has issued detailed instructions for how to calculate the margin of victory. Directive 2006-50.

40. (A) In what circumstances are losing candidates or their supporters entitled to request a (non-automatic) recount?

Any losing candidate may apply for a recount of the votes in any precinct. R.C. 3515.01. In addition, any group of five voters can apply for a recount on a ballot issue provided that they state in the application that that their vote was defeated. Voters have no right to apply for a recount of a race for an office, only issue recounts. Rios v. Blackwell, 345 F.Supp.2d 833, 835 (2004). However, voters may file an election contest lawsuit (which is a totally separate procedure from a recount) in a race for an office under R.C. 3515.08.

Losing candidates who file an election contest may request a recount as part of the discovery prior to trial. R.C. 3515.13. However, the trial court’s decision to order such a recount is discretionary. Taft v. Cuyahoga County Bd. of Elections, 2006-Ohio-4204, ¶ 24.

40. (B) How is that done? What is the deadline for doing so?

The procedure for applying for a recount differs depending on whether the disputed office was within a county, within a district (more than one county but not statewide), or statewide.

For offices or issues within a county, the application must be filed within five days after the Board “declares the results of such election.” R.C. 3515.02. The statute does not state whether this means when the results are announced, or when they are certified.

For offices or issues within a district, the application must be filed within five days after the Board of the most populous county within the district declares the results of the election.

For statewide offices, the application must be filed within five days after the Secretary of State declares the results of the election.

Applications for recount shall list each precinct in which a recount is requested. A deposit must be filed along with the application as security for cost of the recount, which is set by the Board under R.C. 3515.07. R.C. 3515.03. After the application is filed, the Board shall fix the time, method and place where the recount will occur. The time shall not be later than ten days after the recount application was filed. Each candidate for the disputed office will receive notice and may attend the recount personally and by appointing an observer under R.C. 3515.03. Before a recount starts, the Board will stop the recount upon request of all the candidates who lost the original count. R.C. 3515.03. However, once precincts have begun to count, a request will only stop recounts in precincts that have not yet begun recounting, and it will only stop those precincts if the completed recount in the other precincts would not change the result of the election. R.C. 3515.04.

If a recount changes the result of an election, the candidate previously declared the winner may file an application for recount in precincts not subject to the previous recount. R.C. 3515.06. This application must be filed within five days of when the declaration of the results of the election was amended to reflect the results of the original recount.

Any group of five voters who voted on a ballot issue and who lost the issue may apply for a recount on the ballot issue using a similar procedure.

For a detailed description of 2006 recount procedures ordered by the Secretary of State, see Directive 2006-50.

40. (C) When should the recount be completed?

The recount must begin on a date within ten days of the date the Board received the recount application. R.C. 3515.03.

For Presidential elections, any recount must be completed not later than six days before the time fixed under federal law for the meeting of Presidential electors. R.C. 3515.041. There is no deadline set for non-Presidential elections. However, the Board must certify a final canvas of the returns no later than eighty-one days after the election (or ninety-one days after a special election held on the day of a presidential primary). R.C. 3505.32. The recount should be completed by this deadline.

40. (D) Who pays for the recount?

It depends on who caused it to occur. If the recount was done at a candidate’s request, the candidate shall pay for it unless the recount changes the result of the election or differs four percent or more from the original count. R.C. 3515.07. The cost of the recount will be set by the Board using a special formula, but will not be more than fifty nor less then five dollars per recounted precinct.

If the Board orders a recount, the county pays for it. If the Secretary of State orders a recount, the Secretary of State will pay for it.

41. In the event of a recount of votes cast on a DRE machine, is the record to be recounted electronic or paper?

The paper record will be used for the recount. R.C. 3506.18. The only exception is if “there is clear evidence that the paper record copy is inaccurate, incomplete or unreadable as defined in the system procedures.” O.A.C. 111:5-1-01(E)(1)(b)(iii). The same requirements that govern the handling and preservation of paper ballots will apply to these records.

42. Who are the state officials who conduct recounts?

The Board will conduct the recount. R.C. 3515.04. During the recount, only members of the Board, the director of the Board, or board employees shall handle ballots. The Board of Elections consists of four partisan officials—not more than half of whom are from a single party– appointed by the Secretary of State. R.C. 3501.06.

Persons requesting recounts and their appointed observers may observe the recount process. R.C. 3515.03; 3515.04.

43. In an election contest lawsuit, what is the contestant’s burden of proof?

People contesting an election carry a high burden of proof. They must prove “by clear and convincing evidence that one or more election irregularities occurred and that the irregularity or irregularities affected enough votes to change or make uncertain the result of the … election.” Crane v. Perry Cty. Bd. of Elections, 107 Ohio St.3d 287, 2005-Ohio-6509, ¶ 22 (2005). Clear and convincing evidence is more than the preponderance of the evidence required in most civil cases, but less than the “beyond a reasonable doubt” standard found in criminal cases. Id. Clear and convincing evidence is evidence strong enough to “provide … a firm belief or conviction as to the facts sought to be established.” Id. (citation omitted).

44. In an election contest lawsuit, will the court permit discovery, including depositions?

In an election contest, the court may compel the attendance of witnesses and compel the production of ballots and other evidence. R.C. 3515.12. The court may require voters, election officers and other witnesses to answer any questions related to the contest. The procedures will follow those of regular trials, insofar as practicable. R.C. 3515.11.

Contestants may request a special court-ordered recount prior to trial. R.C. 3515.13. However, the trial court’s decision to order such a recount is discretionary. Taft v. Cuyahoga County Bd. of Elections, 2006-Ohio-4204, ¶ 24.

For a contest in the Ohio Supreme Court, all testimony will be in the form of depositions. R.C. 3515.16. The Ohio Supreme Court hears all election cases involving statewide offices or issues, offices or issues concerning that cross county lines, or appellate judicial offices. R.C. 3515.08. The only exception to this is that contests for Supreme Court judicial offices will be heard by a justice of the Supreme Court designated by the governor.

45. In an election contest lawsuit, how much evidence of wrongdoing must a contestant have to survive a motion to dismiss?

None.

To survive a motion to dismiss, a contestant must only allege in the petition that an election irregularity occurred and that that irregularity affected the validity of the election and altered its outcome. In re Election Contest of Democratic Primary Held May 4, 1999 for Clerk, Youngstown Mun. Court, 87 Ohio St.3d 118 at 120 (2000). However, in deciding a motion to dismiss, the trial court need not consider allegations of irregularities that did not appear in the original pleading or an amended pleading. In re Election Contest of Democratic Primary Held May 4, 1999 for Clerk, Youngstown Mun. Court, 88 Ohio St.3d 258 at 277 (2000). [top]

46. In an election contest lawsuit, what specific deadlines and timetable does state law provide for a trial?

In general, the contestant must contest the election within fifteen days of certification. The hearing must be conducted between fifteen and thirty days after the filing of the contest, and the losing party may appeal within twenty days of the trial court judgment.

To begin the election contest lawsuit, the contestant must file a petition in the appropriate court within fifteen days after the results of the election are “announced by the proper authority.” R.C. 3515.09. However, if there is a recount, the contestant must file the petition within ten days after the results of the recount are announced. The Supreme Court of Ohio has read this statute to say that the clock on the deadline begins ticking only after the election returns are certified, not when they are announced. Maschari v. Tone, 103 Ohio St.3d 411, 2004-Ohio-5342, ¶14 (2004).

A contestant must file a bond as security, and failure to do so will deprive the trial court of jurisdiction to hear the case. Taft v. Cuyahoga County Bd. of Elections, 2006-Ohio-4204, ¶ 17. Substantial compliance with the detailed bond-posting procedures is sufficient, and a mere technical violation of them will not destroy jurisdiction.

The appropriate court differs depending on the type of case. Cases involving statewide offices or issues, offices or issues concerning that cross county lines, or appellate judicial offices shall be heard by the Chief Justice of the Ohio Supreme Court or a Supreme Court justice assigned by the Chief Justice. R.C. 3515.08. The only exception to this is that contests for Supreme Court judicial offices will be heard by a justice of the Supreme Court designated by the governor. Disputes over other offices or issues will be heard by a judge in the local common pleas court.

The trial court shall set a trial date between fifteen and thirty days after the filing of the petition. R.C. 3515.10. After setting this trial date, the court may set a new date not later than thirty days after the original date. Id. However, one court has interpreted the statute to allow for an extension of more than thirty days if the extension is made on the court’s own motion. In re Sugar Creek Local School Dist., 185 N.E.2d 809, 811 (1962).

The timeline imposed by R.C. 3515.10 is strict and parties who allow the court to go beyond that timeline without formal objection will lose their right to a day in court. Harmon v. Baldwin, 107 Ohio St.3d 232, 2005-Ohio-6264, ¶ 19 (2005) ; Helms v. Green, 102 Ohio St.3d 295, 2004-Ohio-2951, ¶ 7 (2004). If the hearing does not occur within the timeline, it deprives the court of jurisdiction to hear the case.

Parties dissatisfied with the judgment of a common pleas election contest trial may appeal questions of law (but not questions of fact) to the Supreme Court of Ohio by filing a notice of appeal within twenty days of the judgment. R.C. 3515.15. However, this appeal will not stay the execution of the judgment of the trial court. Taft v. Cuyahoga County Bd. of Elections, 2006-Ohio-4204, ¶ 10. There is no right of appeal to lower appellate courts. 25 Electors of Precinct 13-E of City of Columbus v. Franklin County Bd. of Elections, 1995 WL 360241 at 2 (unreported)(10th Dist., 1995). Cases are heard by the Chief Justice of the Ohio Supreme Court under R.C. 3515.08 cannot be appealed. Modarelli v. Carney, 56 Ohio St.2d 67, 69 (1978)

Elections contests for federal offices cannot be filed using the above procedures, but must be filed using separate federal procedures. R.C. 3515.08.

47. Are the judges in the state themselves elected or appointed?

Ohio trial court judges, appellate judges, and Supreme Court judges are elected. Const. Art. IV, § 6. The chief justice of the Ohio Supreme Court may appoint temporary judges to fill vacancies as necessary. Const. Art. IV, § 5.

Other

48. What specific problems arose in connection with the voting process in this state during 2004? What remedies, if any, did the state adopt in response to those problems?

See the following article from Professor Dan Tokaji.

49. What pending litigation exists in the state concerning the voting process?

See the following chart of major pending litigation maintained by the EL@M team.

50. What voting machines are used in this particular state? What security measures are in place to prevent tampering with the voting machines? Insofar as DRE machines are used, is there a requirement that they produce a voter-verifiable paper trail?

Different counties use different machines. The law allows use of punch-card, optical scan, and electronic voting machines, but punch-card machines are no longer used by any county in the state. All electronic (DRE) voting machines must produce a paper voter-verified paper trail (VVPAT). The Ohio Administrative Code contains detailed standards for DRE machines.

OAC section 111:5-1-01 provides that DRE machines must produce a paper trail that reflects the vote cast on the machine and that can be viewed and verified by the voter before the voter makes his or her vote final. If voters are unhappy with the information contained on the VVPAT, they may “spoil” the VVPAT and re-cast their vote up to two more times (the third time is final and cannot be changed). The VVPAT must be printed in a form that can be read by an optical scanner for recount purposes, and must be “readable in a manner that makes the voter’s ballot choices obvious to the voter without the use of computer or electronic codes.” Electronic (DRE) voting machines will be equipped with a “low supply” warning feature and be designed so that poll workers will not have to replace the machine’s ink or paper more than once during the polling hours. The machines must have a battery that can sustain them for at least two hours in the event of power failure.

The Secretary of State is currently in litigation concerning whether allowing the use of different kinds of voting equipment in different precincts violates the Equal Protection Clause and Due Process Clause of the US Constitution and the Voting Rights Act of 1965.