The state’s lawyer, Aaron Epstein, told Marbley that “by any metric,” the number of potentially discarded ballots at issue was too small to warrant intervention by the federal courts.
Marbley was skeptical.
“While we might not look for perfection,” he told Epstein, “if your vote is the vote not being counted, it’s a bad election, agreed?”
Such is the state of play in this Midwestern swing state with a reputation for close elections, messy ballot procedures and litigious politicos. “Will Ohio count your vote?” blared a recent headline in the Cincinnati Enquirer.
Closing the deal with voters is only the beginning for President Obama and Republican challenger Mitt Romney, and not just in Ohio. In courthouses across the country, lawsuits are challenging state laws that dictate who may vote, when they may vote and whether their ballot will be counted once they have voted.
There is a special urgency in the presidential election’s swing states. Lawyers in Colorado are poised to challenge the secretary of state’s proposed purge of noncitizens from voter rolls. A half-dozen suits are aimed at Florida’s raft of voting changes. A Pennsylvania judge is deciding whether a voter ID law there violates the state constitution.
In Ohio, the Obama campaign has filed suit against a law passed by the state’s Republican leadership to shorten the early-voting period.
And the separate issue in Marbley’s courtroom was whether Ohio must count provisional ballots cast in the wrong precinct when the mistake was the fault of a poll worker rather than the voter.
Edward B. Foley, director of the election law center at Ohio State University’s law school, said that because Ohio has been a swing state for so long, voting rights lawsuits have become part of the landscape. Off-year elections serve as training grounds for presidential-year legal battles.
“Each party has enough built-up knowledge and has lawyers that it can go to again and again,” Foley said. “There’s a kind of sophistication to it.”
A familiar battleground
Provisional ballots often are the battleground in Ohio; more than 200,000 such ballots were cast in 2008, more than in any other state besides California.
Such ballots are cast when a voter has some irregularity — a lack of proper ID, a name change not recorded, a missing entry on the voter rolls — that keeps him or her from filing a regular ballot. Local boards of elections then must decide whether to count them.
Some decisions are easy: for instance, if the person filing the ballot is not legally registered to vote.
But the case brought by the civil rights group Advancement Project, the Service Employees International Union and others challenges the part of Ohio state law that says ballots cast in the wrong precinct should not be counted, even if the voter was only following a poll worker’s instructions.