In a decision that is being called the “most significant” application of Bush v. Gore in the past decade, the Sixth Circuit held that the Hamilton County Board of Elections violated the Equal Protection Clause of the Fourteen Amendment. Judge Moore’s opinion held that the Board could not sufficiently justify its decision to count 27 early ballots cast at its downtown office but filed in the wrong precinct due to official error, but not 269 provisional ballots cast at the correct polling location but in the wrong precinct (i.e., at the wrong table) possibly due to poll-worker error. The majority found that the Board’s failure to articulate a persuasive reason to excuse poll-worker error in one context but not the other violated the Equal Protection standard established by Bush v. Gore for local election administration. The majority avoided scrutinizing Ohio’s election laws under Equal Protection, noting that its decision should not have large statewide effects.
Far more worrisome for Ohio election officials, however, was the Court’s preliminary disapproval of Ohio’s law that ballots cast in the wrong precinct cannot be counted even when the result of poll-worker error. The Court explained that it would violate due process to “disenfranchise citizens whose only error was relying on poll-worker instructions.” In a footnote, the opinion also notes the potential for disparate treatment if multiple-precinct polling locations were mostly in African-American areas of Hamilton County. (After the opinion, a MIT professor analyzed county-level data for Ohio and found no evidence that multi-precinct locations increased the number of potentially-invalid provisional ballots.) In any case, the Court ultimately declined to decide the due process challenge because the district court had not ruled on the issue.
Judge Rogers concurred only the judgment (which vacated the decision below), disagreeing with the majority’s equal protection analysis. He found that the two sets of ballots were “sufficiently different” to justify the differing treatment by the Board of Elections. He also praised the Ohio Supreme Court’s earlier reticence to interfere with a prior district court decision, and urged the district court to adhere, as far as possible, to the instructions given by the Ohio Supreme Court in its previous opinion. Judge Rogers did not comment on the due process question.