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Ohio vote recount allowed

The Supreme Court on Wednesday afternoon cleared the way for election officials in Hamilton County, Ohio, to do a partial recount of votes cast last November for the office of juvenile judge in that county.  The Court, without noted dissent, refused to block a Sixth Circuit Court decision ordering a new count of hundreds of “provisional” ballots, after finding a violation of the vote-equality principles of the Court’s 2000 decision in Bush v. Gore.

A candidate for that judgeship, John Williams, who at one point was ahead in the vote-counting, and the county’s Board of Elections had asked Justice Elena Kagan, as Circuit Justice, to delay the Sixth Circuit’s recount order until they could challenge it in a coming appeal.   Kagan shared the issue with her eight colleagues, and the Court as a whole issued its order refusing to postpone the appeals court order.  The Justices’ action contained no explanation for the refusal.

The Circuit Court had concluded that the local election board had counted 27 “provisional” ballots that had been cast in the wrong precinct but refused to count another 850 ballots also cast in error; the board had accepted that the 27 ballots it chose to count had been wrongly cast because of poll workers’ error, but the same cause appeared to have been behind the 850 that the board decided not to count.

In its ruling, the Circuit Court had applied the Bush v. Gore precedent (which, of course, had settled the 2000 presidential election) in concluding that voters who cast “provisional” ballots were being treated differently, violating the voters’ right to equal counting.   Williams and the local elections board have contended — and probably would contend anew, if they go forward with their planned appeal — that Bush v. Gore does not apply to such a local election contest, especially when the differing treatment was due solely to an unintentional misunderstanding of state election law by local officials.

When the initial vote tally was made in the juvenile judgeship race, Williams was ahead of his opponent, Tracie M. Hunter, by 23 votes.  The actual outcome of the race, however, will not be known now until the recount is completed.

While the Monday order by the Justices did not settle anything about the correctness of the Circuit Court ruling, it was not a good sign for the planned appeal by Williams and the election board.  There is no deadline for them to file an appeal to directly challenge the Circuit Court decision.

Recommended Citation: Lyle Denniston, Ohio vote recount allowed, SCOTUSblog (Apr. 20, 2011, 1:04 PM),