Jon Husted may need a hug

U.S. District Judge Algenon Marbley came back on Tuesday with his ruling over the provisional ballots and Husted’s midnight changes to Ohio election law. A brief refresher: Ohio Secretary of State, Husted issued a last minute directive placing the responsibility for provisional ballot identification on the voters instead of the poll workers. This was in violation of an order Judge Marbley set. This resulted in many provisional ballots not being counted, and the real bad ones are mixed with the one’s Husted conspired to have thrown out.

Judge Marbley wrote a scathing 17 page ruling, which can be read here, saying the directive on counting provisional ballots issued by Husted was “a flagrant violation of s state election law” that could disenfranchise voters. And Marbley owns. Are you not sure how about this, “The surreptitious manner in which the secretary went about implementing this last minute change to the election rules casts serious doubt on his protestations of good faith.”

Husted is appealing the ruling because potentially fraudulent votes could be counted, remember he mixed the “bad” with the one’s that actually shouldn’t be counted…I wonder why they’d do that?

Marbley went on to write, “Ohio voters reasonably expect that the secretary of Ohio will abide by the General Assembly’s laws in administering a federal election. For an executive of the state to (flout) state law in arbitrary reassigning a poll worker’s statuary duty to a voter, with the result being disenfranchisement of the voter, is ‘fundamentally unfair and constitutionally impermissible.”

The judge’s ruling says that directive violates a state law that places the responsibility on poll workers to properly fill out the ballot application. The directive also violates an agreement the reached in federal court, called a consent decree, which protects provisional ballots that contain mistakes because of poll worker error.

Provisional ballots are provided to voters who eligibility had been questioned, which as you know the Tea Party was out in masses trying to challenge people at the polls. The voter then has ten days to prove their eligibility to ensure their vote is counted. They should begin counting them on Saturday. Marbley’s ruling will narrow the circumstances for rejecting the provisional ballots and orders Husted to issue a new directive by Friday at noon.

Husted was unavailable for comment, shocking. His spokesman Matt McClellan says Husted will appeal the ruling “because it allows potentially fraudulent votes to be counted. By eliminating the ID requirement on provisional ballots, the ruling is contrary to Ohio law and undermines the integrity of the election.”

Marbley criticized the provisional ballot application Husted designed for the presidential election. Marbley openly questioned whether the poor drafting was “by design or accident.” I wonder.

According to Marbley the form illegality shifts the responsibility for recording identification information on the provisional ballot application from the poll worker to the voter. The form also makes it difficult for election officials to tell if the errors are the fault of the poll worker or the voter. Marbley wrote, “The voter acting in good faith cannot suffer disenfranchisement as a result of the secretary’s drafting errors.”

This came from an article written by Joe Guillen for the Cleveland Plain Dealer (Save the Plain Dealer). Personally, I think Marbley is being kind through most of this statement. Call it what it is, voter suppression. Husted conspired to disenfranchise voters, and his argument now is that it worked so you can’t make him count the provisional ballots because some fraudulent ballots will be counted too. Well, bananas for him. Well, too damn bad, Jon. You should have thought about that before you decided to disenfranchise people. My other favorite John (Kasich) better fire his ass for this. I mean come on, what kind of politician are you if you get caught disenfranchising voters? Call up the Dems in Cuyahoga County for help on getting around the system. Everyone who worked for former Mayor Michael White was indicted.

Federal Judge to Ohio Secretary of State: WTF

On Wednesday, U.S. District Judge Algenon Marbley hear from Ohio Secretary of State Jon Husted's public lawyers on the disenfranchisement of Ohio citizens whose provisional ballots were not properly completed by poll workers. Spoiler, Judge Marbly was pissed, and Ohio has no defense.

Ohio still hasn't counted hundred of thousands of provisional ballots more than 30,000 in Cuyahoga County. Try to contain your shock, clutch something, poor people of color live there. The provisional ballots were given to voters whose registration or identification was challenged at the polls. Ohio is required to count all the ballots by the end of the month. So it is important to get the count for accurate figures, but also because of the precedent this would set for elections in the future.

According to The Atlantic, voter rights advocates thought we had things worked out when Judge Marbley entered a consent decree:

1. acknowledge that poll workers were required to record identification offered by a voter, and
2. making Ohio responsible, and thus the ballot otherwise valid, if any poll workers made errors while collecting or transcribing the information.

Judge Marbley's decision was fair. However, late Friday at 7pm, Husted backed away from the court-order. Husted instructed local election officials to reject any ballots where the information was mistakenly recorded. We have no idea how many registered voters could be disenfranchised. But Judge Marbley is pissed so it doesn't look good for Husted.

I pulled the sections form the transcript that The Atlantic did because they are awesome. Husted's representative is Arnold Epstein. Judge Marbley begins with calling Ohio out immediately:

THE COURT: Mr. Epstein.
Mr. Epstein, would you agree that voting is the linchpin of our democracy?
MR. EPSTEIN: Yes, Your Honor.
THE COURT: I do too. What concerned me about the 2012-54 directive is that it was filed on a Friday night at 7 p.m. The first thought that came to mind was democracy dies in the dark. So, when you do things like that that seeks to avoid transparency, it appears, then that gives me great pause but even greater concern.

Judge Marbley later asks why they put the burden on the voters instead, which is a violation of the statutes.

It only became the voter's burden after the secretary declared it was the voter's burden and sent you in here to defend it. You haven't been able to show me any law that would justify that, nor have you shown me any facts that would require him to change it.

The Judge demands Epstein show him the language of the statute to allow for Husted's change.

THE COURT: Show me the language.
MR. EPSTEIN: I cannot find the word "shall" for you. I believe it's contemplated in the way they designed the form where they said this is the information for the affirmation, and then the voter can provide at his or her discretion this other information.
THE COURT: Mr. Epstein, I have said on the record that Mr. Coglianese is probably one of the best election lawyers who's been in my courtroom; maybe one of the best lawyers, period. I believe the same thing of you because of the nature of the work that you've done. Do you honestly believe what you just told me?
MR. EPSTEIN: I do, Your Honor.
THE COURT: If you honestly believe that, show it to me, because you were -- in another context, and in this case, you have argued that it's literally not there. You have argued that the absence of the language means the absence of the law. Now you're telling me to look at this and find an obligation, a burden, if you will, within the penumbras of this statute. Show it to me. All I'm asking is to see it. If I can see it, I can believe it. But if you can't show it to me, then make your penumbras argument.
We're going to be transparent, and you're going to tell me -- if you expect to prevail, somebody is going to answer my question because no one is answering it from your side as to where it is. So tell me if it's in the penumbras because you can't point to the language. So show me where it is. Show me where it's meant. Show me the legislative history. Show me the facts that the secretary used to make the decision to change this directive at seven o'clock on a Friday night on the eve of an election. I want to see it, and I want to see it now. Show it to me.
MR. EPSTEIN: Your Honor, I have no legislative history to present to the Court.

Epstein is pretty much saying Ohio has no legal argument. Essentially, the Ohio argument is it's too late now to change our plan because we can't tell which ballots are good or bad. Wrap your mind around that. There are two classifications of provisional ballots because of an unlawful directive, and Husted doesn't want to count any of them. Looks like voter suppression, smells like a felony.

Judge Marbley will have his order on Monday.