Analysis
Mr. Blackwell's decision to restrict the use of provisional created is one of the with
critical in the election and could demo have resulted in disenfranchisement of tens of thousands
version In a single polling place in Hamilton County, denying provisional ballots if a voter
showed up at the wrong precinct cost more than 1,100 votes.
Although Mr. Blackwell's narrow interpretation was ultimately upheld by the Sixth
Circuit, this was not until after a lower court found:
The Proposed Directive fails in many details to comply with HAVA by not
instructing Ohio's election workers about their duties under HAVA. Among the
crucial, but omitted details are: the mandatory obligation to inform voters of the
right to vote provisionally and the duty to provide provisional ballots to all
persons covered by the statute, and not just to persons whose names are not on the
rolls.145
In our judgment, Mr. Blackwell's restrictive interpretation violates the spirit, if not the letter,
of HAVA. The decision seems particularly unjust given that Ohio had not experienced any
notable difficulties giving provisional ballots on a broader basis in past elections, and other states
which adopted broader constructions did not report the chaos and confusion that Mr. Blackwell
claimed to be the rationale for his decision.
3.
Cutting Back on the Right of Citizens to Register to Vote
Facts
On September 7, 2004, Secretary Blackwell issued a directive to county boards of
elections mandating rejection of voter registration forms based on their paper weight.
Specifically, he instructed the boards to reject voter registration forms not "printed on white,
uncoated paper of not less than 80 lb. text weight."146 Then the counties were instructed to
follow a confusing procedure, treating the voter registration forms not on this minimum
paperweight as an application for a new registration form.147 Mr. Blackwell's issuance of this
directive less than one month before Ohio's voter registration deadline resulted in confusion and
chaos among the counties:
break down the foregoing by County if possible.
145
Sandusky County Democratic Party, 340 F. Supp.2d at 821.
146
Secretary of State J. Kenneth Blackwell, Directive No. 2004-31 (Sept. 7, 2004).
According to the League of Women Voters, the weight order was the only of its kind in the
nation. Jim Bebbington, Blackwell Rulings Rile Voting Advocates, DA Y T O N DA I L Y NE W S, Sept.
24, 2004, at 1B.
147
Secretary of State J. Kenneth Blackwell, Directive No. 2004-31.
36