Sandusky Co. Democratic Party v. Blackwell

• Decision Date: 26 October 2004
• Docket Number: No. 04-4265.,No. 04-4266.,04-4265.,04-4266.
• Citation: 387 F.3d 565
• Parties: SANDUSKY COUNTY DEMOCRATIC PARTY; The Ohio Democratic Party; Farm Labor Organizing Committee; North Central Ohio Building and Construction Trades Council; and Local 245 International Brotherhood of Electrical Workers, Plaintiffs-Appellees, v. J. Kenneth BLACKWELL, Defendant-Appellant, Gregory L. Arnold; Glenn A. Wolfe; and Thomas W. Noe, Intervenors-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

387 F.3d 565

SANDUSKY COUNTY DEMOCRATIC PARTY; The Ohio Democratic Party; Farm Labor Organizing Committee; North Central Ohio Building and Construction Trades Council; and Local 245 International Brotherhood of Electrical Workers, Plaintiffs-Appellees, v. J. Kenneth BLACKWELL, Defendant-Appellant, Gregory L. Arnold; Glenn A. Wolfe; and Thomas W. Noe, Intervenors-Appellants.

No. 04-4265.

No. 04-4266.

United States Court of Appeals, Sixth Circuit.

Submitted: October 23, 2004.

Decided and Filed: October 26, 2004.

Appeal from the United States District Court for the Northern District of Ohio, James G. Carr, J.

COPYRIGHT MATERIAL OMITTED

ON BRIEF: Richard G. Lillie, Gretchen A. Holderman, Benesch, Friedlander, Coplan & Aronoff, Cleveland, Ohio, Truman A. Greenwood, Theodore M. Rowen, James P. Silk, Jr., Spengler Nathanson, Toledo, Ohio, William M. Todd, Squire, Sanders & Dempsey, Columbus, Ohio, Pierre H. Bergeron, Squire, Sanders & Dempsey, Cincinnati, Ohio, for Appellants. Fritz Byers, Toledo, Ohio, Samuel Bagenstos, St. Louis, Missouri, for Appellees. David K. Flynn, Christopher C. Wang, Department of Justice, Civil Rights Division, Washington, D.C., William N. Nettles, Columbia, South Carolina, Kurtis A. Tunnell, Anne Marie Sferra, Maria Armstrong, Bricker & Eckler, Columbus, Ohio, John L. Ryder, Harris, Shelton, Dunlap, Cobb & Ryder, Memphis, Tennessee, Kathleen A. Behan, Jennifer A. Karmonick, Arnold & Porter, Washington, D.C., Johanna R. Pirko, Los Angeles, California, Raymond W. Lembke, Cincinnati, Ohio, for Amici Curiae.

Before: BOGGS, Chief Judge; GILMAN, Circuit Judge; and WEBER, District Judge.^*

PER CURIAM.

At bottom, this is a case of statutory interpretation. Does the Help America Vote Act require that all states count votes (at least for most federal elections) cast by provisional ballot as legal votes, even if cast in a precinct in which the voter does not reside, so long as they are cast within a "jurisdiction" that may be as large as a city or county of millions of citizens? We hold that neither the statutory text or structure, the legislative history, nor the understanding, until now, of those concerned with voting procedures compels or even permits that conclusion. Thus, although we affirm many of the rulings of the district court and its proper orders requiring compliance with HAVA's requirements for the casting of provisional ballots, we hold that ballots cast in a precinct where the voter does not reside and which would be invalid under state law for that reason are not required by HAVA to be considered legal votes.

To hold otherwise would interpret Congress's reasonably clear procedural language to mean that political parties would now be authorized to marshal their supporters at the last minute from shopping centers, office buildings, or factories, and urge them to vote at whatever polling place happened to be handy, all in an effort to turn out every last vote regardless of state law and historical practice. We do not believe that Congress quietly worked such a revolution in America's voting procedures, and we will not order it.

I

The States long have been primarily responsible for regulating federal, state, and local elections. These regulations have covered a range of issues, from registration requirements to eligibility requirements to ballot requirements to vote-counting requirements. See Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974) ("[T]he States have evolved comprehensive, and in many respects complex, election codes regulating in most substantial ways, with respect to both federal and state elections, the time, place, and manner of holding primary and general elections, the registration and qualifications of voters, and the selection and qualification of candidates."). One aspect common to elections in almost every state is that voters are required to vote in a particular precinct. Indeed, in at least 27 of the states using a precinct voting system, including Ohio, a voter's ballot will only be counted as a valid ballot if it is cast in the correct precinct.¹

The advantages of the precinct system are significant and numerous: it caps the number of voters attempting to vote in the same place on election day; it allows each precinct ballot to list all of the votes a citizen may cast for all pertinent federal, state, and local elections, referenda, initiatives, and levies; it allows each precinct ballot to list only those votes a citizen may cast, making ballots less confusing; it makes it easier for election officials to monitor votes and prevent election fraud; and it generally puts polling places in closer proximity to voter residences.

The responsibility and authority of the States in this field are not without limit. Although the United States Constitution, and Supreme Court decisions interpreting the Constitution, give primary responsibility for administering and regulating elections to the States, the States must adhere to certain constitutional and statutory requirements. States may not in any election deny or abridge the right to vote on the basis of race, see U.S. Const. amend. XV § 1, for example, and must adhere to the principle of one person, one vote, see Reynolds v. Sims, 377 U.S. 533, 565-566, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). In addition, Congress has imposed upon the States certain statutory requirements for the administration of federal elections, such as the National Voter Registration Act, 42 U.S.C. § 1973gg et seq. ("NVRA"). In 2002, Congress passed the Help America Vote Act, Pub.L. 107-252. Title III, § 302, 116 Stat. 1706 (codified at 42 U.S.C. § 15301 et seq.) ("HAVA"), which is the subject of this appeal.

HAVA was passed in order to alleviate "a significant problem voters experience[, which] is to arrive at the polling place believing that they are eligible to vote, and then to be turned away because the election workers cannot find their names on the list of qualified voters." H.R. Rep. 107-329 at 38 (2001). HAVA dealt with this problem by creating a system for provisional balloting, that is, a system under which a ballot would be submitted on election day but counted if and only if the person was later determined to have been entitled to vote.

Section 302 of HAVA, the section most pertinent to this appeal, requires States to provide voters with the opportunity to cast provisional ballots and to post certain information about provisional ballots at polling places on election day. The section's requirements relating to the casting of provisional ballots are as follows:

(a) Provisional voting requirements. If an individual declares that such individual is a registered voter in the jurisdiction in which the individual desires to vote and that the individual is eligible to vote in an election for Federal office, but the name of the individual does not appear on the official list of eligible voters for the polling place or an election official asserts that the individual is not eligible to vote, such individual shall be permitted to cast a provisional ballot as follows:

(1) An election official at the polling place shall notify the individual that the individual may cast a provisional ballot in that election.

(2) The individual shall be permitted to cast a provisional ballot at that polling place upon the execution of a written affirmation by the individual before an election official at the polling place stating that the individual is —

(A) a registered voter in the jurisdiction in which the individual desires to vote; and

(B) eligible to vote in that election.

(3) An election official at the polling place shall transmit the ballot cast by the individual or the voter information contained in the written affirmation executed by the individual under paragraph (2) to an appropriate State or local election official for prompt verification under paragraph (4).

(4) If the appropriate State or local election official to whom the ballot or voter information is transmitted under paragraph (3) determines that the individual is eligible under State law to vote, the individual's provisional ballot shall be counted as a vote in that election in accordance with State law.

(5)(A) At the time that an individual casts a provisional ballot, the appropriate State or local election official shall give the individual written information that states that any individual who casts a provisional ballot will be able to ascertain under the system established under subparagraph (B) whether the vote was counted, and, if the vote was not counted, the reason that the vote was not counted.

(B) The appropriate State or local election official shall establish a free access system (such as a toll-free telephone number or an Internet website) that any individual who casts a provisional ballot may access to discover whether the vote of that individual was counted, and, if the vote was not counted, the reason that the vote was not counted.

42 U.S.C. § 15482.

In essence, HAVA's provisional voting section is designed to recognize, and compensate for, the improbability of "perfect knowledge" on the part of local election officials. See Florida Democratic Party v. Hood, 2004 WL 2414419, at 13 (N.D.Fla. Oct. 21, 2004) (order granting preliminary injunction). "If a person presents at a polling place and seeks to vote, and if that person would be allowed to vote by an honest election worker with perfect knowledge of the facts and law, then the person's vote should count." Ibid. But because any given election worker may not in fact have perfect knowledge, the person who claims eligibility to vote, but whose eligibility to vote at that time and place cannot be verified, is entitled under HAVA to cast a provisional ballot. Ibid. "On further review — when, one hopes, perfect or at least more perfect knowledge will be available — the vote will be counted or not, depending on whether the person was indeed entitled to vote at that time and place." Ibid....