Ohio Provisional Ballots Case a Win for Voting Rights Activists, but Gerrymandering Still Stunts Potential Democratic Gains

The Sixth Circuit Court of Appeals has delivered one of the last remaining blows to voter suppression efforts across the country. And this one cements the near-clean sweep for voting rights advocates in litigation.

Today, the Sixth Circuit ruled that Ohio, a pivotal state in the Presidential race, must count all provisional ballots where voters cast them in the “wrong precinct,” if this occurred solely due to poll worker error. You would think this wouldn’t come up very much, but in Ohio, it does, because many polling places operate in multiple precincts at the same time. Several precincts vote at the same site, and so voting in the “wrong precinct” is often as simple as a poll worker writing down the wrong precinct number on the ballot.

The three-judge panel agreed today with the argument that thousands of Ohio voters should not be disenfranchised due to a poll worker’s error.

The application of Ohio Rev. Code §§ 3505.183(B)(4)(a)(ii) and (B)(4)(b)(ii) to right-place/wrong-precinct ballots caused by poll-worker error effectively requires voters to have a greater knowledge of their precinct, precinct ballot, and polling place than poll workers. Absent such omniscience, the State will permanently reject their ballots without an opportunity to cure the situation. The mere fact that these voters cast provisional ballots does not justify this additional burden; as the district court explained, Ohio law now requires thirteen different categories of voters to cast provisional ballots, ranging from individuals who do not have an acceptable form of identification to those who requested an absentee ballot or whose signature was deemed by the precinct official not to match the name on the registration forms….

Nor has the State shown abuse in the district court’s fashioning of injunctive relief tailored to the identified harm. The State would disqualify thousands of rightplace/wrong-precinct provisional ballots, where the voter’s only mistake was relying on the poll-worker’s precinct guidance. That path unjustifiably burdens these voters’ fundamental right to vote. Recognizing that a prospective remedy could not undo all of the harm occasioned by poll-worker error, the district court crafted a narrow remedy that preserves as much of a miscast ballot as possible.

As I said, this ruling falls within a continuum with other voting rights rulings this year, almost all of which have gone in favor of those arguing for expanded access rather than voter suppression. Voter ID laws were delayed or cancelled in Wisconsin, Texas, South Carolina and Pennsylvania; Ohio’s attempts to shrink early voting hours failed; Florida’s purging of voter rolls mostly got rolled back (at least so far).

That’s the good news. The bad news is that there are ways to “rig” elections that go back centuries, which cannot necessarily get litigated in a court. Charlie Cook introduced his famed PVI (Partisan Voting Index) today, and it indicates the expected reality: Republicans buttressed their 2010 House gains through gerrymandering in the redistricting process:

Unfortunately for Democrats, this year’s index tells a dire story of what can happen when a party suffers an ugly election cycle right before redistricting. Democrats couldn’t have picked a worse year to than 2010 to get clobbered: they lost not only 63 House seats but also more than 680 state legislative seats – empowering Republicans to draw ten-year maps in four times as many districts as Democrats. As a result, thanks to effective GOP cartography, the number of “strong” Republican seats has jumped from 182 to 190 and the number of “strong” Democratic seats has fallen from 150 to 146. Meanwhile, the number of “swing” seats has fallen below 100 for the first time, from 104 to 99.

If both parties hold all their “strong” districts, Democrats would now need to win 73 percent of all “swing” districts to achieve a majority – a very difficult feat even in a “wave” year, something 2012 does not appear to be. It also doesn’t help Democrats that of the 99 “swing seats” (those between D+5 and R+5 in the PVI), 56 lean slightly to Republicans while just 43 lean slightly to Democrats. If every single seat elected a member consistent with its PVI score, there would be 246 Republicans and 189 Democrats, not far off from the current count in the House. This suggests that in a “neutral” year, Democrats could win just as many popular votes for House as the GOP and still fall more than two dozen seats shy of a majority.

So all these polls showing Democrats with a potential advantage on the generic ballot for the House are not good enough. They have to go well beyond that to have a chance at winning back the House.

Voting rights advocates did successfully sue to overturn Texas’ maps, but they allowed a court-drawn temporary set of maps that included roughly the same level of gerrymandering to go through. So really there wasn’t much of a push against this, and there’s hardly a good solution here anyway. Gerrymandering has been with us, from both parties, since the founding of the republic. For all the bluster about election theft, the easiest way to rig a vote is to pick the voters.

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