It is now mid February, 2012, and the November 2010 Juvenile Court race in Hamilton county is still undecided.  On February 8 Judge Susan Dlott ruled that nearly 300 provisional ballots cast at the right polling place but wrong precinct because of poll worker error had to be counted, just as the 27 plus ballots miscast at the Board of Elections due to poll worker error had been counted.  You can read about that decision here.  Yesterday, the Hamilton County Board of Elections met to consider whether to appeal that decision to the Sixth Circuit Court of Appeals.  Not surprisingly, the two Republicans on the board, Republican party chair Alex Triantafilou and Chip Gerhardt voted to appeal the case, while the two Democrats, Democratic party chair Tim Burke and Caleb Faux voted not to, and to start the counting. Ties are broken by the Secretary of State.  This post is an appeal to Secretary Husted to rise above partisan politics, not break the Board of Elections tie in favor of appealing the case, and allow the counting ordered by Judge Dlott to proceed.

In many ways, this case is an anomaly, because as the Supreme Court of Ohio made clear in State ex. rel. Painter v. Brunner, under existing Ohio election law, ballots cast in the wrong precinct cannot be counted, and there is no exception to that rule for poll worker error.  While I’m sure we’ve not seen the end of poll worker error in future elections, it is unlikely we will ever see this scenario again, where a local board of elections singles out ballots miscast at the Board of Elections due to poll worker error. If the Board of Elections hadn’t decided to count those first 27 wrongly cast ballots in the first place, the entire equal protection challenge that forms the basis of Judge Dlott’s decision would not exist.  So, since this series of events is not likely to re-occur, why not get on with counting the ballots in this case?  The Republicans already have control of the administrative judgeship in Hamilton County Juvenile court—John Williams was appointed to that seat months ago.  Thus they will continue to control the hiring and patronage that goes along with that position.

The far more serious issue in this case, and one which I am sure would garner considerable attention from the Secretary of State is the due process issue, which wasn’t decided in the case because it wasn’t really raised in it.  Both Judge Karen Moore of the U.S. Court of Appeals for the Sixth Circuit, and Judge Dlott have now suggested that state election laws that disenfranchise voters because of poll worker error, and allow no recourse, are ripe for a due process challenge.  As Judge Dlott just wrote in her opinion, “Ohio’s precinct-based voting system that delegates to poll workers the duty to ensure that voters are directed to the correct precinct but which provides that provisional ballots cast in the wrong precinct shall not be counted under any circumstance, even where the ballot is miscast due to poll-worker error, is fundamentally unfair and abrogates the Fourteenth Amendment’s guarantee of due process of law.”

But since the  Hunter case is now only concerned with an equal protection issue in a context that is probably unique to this election, why bother to appeal it again?