Charles Stewart III, Massachusetts Institute of Technology

The decision issued by the three-judge panel of the 6th Circuit Court of Appeals in the matter of Hunter v. Hamilton County Board of Elections2 contains a very interesting analysis of problems with Ohio’s law about counting provisional ballots when they are cast in “the right church, wrong pew” (RCWP).

On the whole, the appeals court opinion contains a strong argument against the Draconian effects of the Ohio law, which allows — indeed, mandates — disenfranchisement of voters who have followed the instructions of a poll worker.

However, the decision makes what appears to be an empirically questionable assumption in its footnote 24, which reads as follows:

It is also discomforting that Ohio’s rule that all provisional ballots cast in the wrong precinct must be excluded may fall—at least in this instance—unevenly on voters depending on where the Board directs them to vote. In single-precinct polling places there is less room for error than at the multiple precinct locations that have caused so much difficulty in this case. As a result, fewer provisional ballots are likely to be counted in multiple-precinct polling places than in those that serve only a single precinct. This disparate impact might not be of constitutional significance everywhere in Ohio, but here Plaintiffs assert that “the polling places where most of the error-infected provisional ballots were cast are in African-American areas of Hamilton Country.” Plaintiffs 2d Br. at 3. It appears, then, that the exclusionary rule in this case may accrue to the detriment of a protected class. (Emphasis added)