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Ohio Supreme Court Will Rule on Provisional Ballot Case

A 3-judge panel of the 6th U.S. Circuit Court of Appeals ruled on Tuesday that the Ohio Supreme Court rather than federal court is the proper forum to decide whether thousands of provisional ballots will be counted. Riding on the outcome of that count is the congressional race in Ohio's 15th District where Republican Steve Stivers leads Democrat Mary Jo Kilroy by fewer than 600 votes.

On November 13th, two Republican voters filed a complaint against the Franklin County Board of Elections and against Secretary of State Jennifer Brunner, a Democrat. The two, acting on behalf of the Stivers campaign, sought to prevent the counting of about a thousand potentially flawed provisional ballots.

Brunner asked that the case be moved from the all-Republican Ohio Supreme Court to federal court. But on Tuesday, a three judge panel of the 6th U.S. Circuit Court of Appeals ruled unanimously that a U.S. district court does not have the power to resolve the dispute. Terry Casey, a consultant for the Stivers campaign, says that Secretary Brunner and federal judge Algenon Marbley were in error.

"Obviously the 6th Circuit which is just one step below the U.S. Supreme Court said she was wrong and the federal judge was wrong and that this is the kind of issue and state law that should be most aptly decided by the Ohio Supreme Court," Casey says.

A spokesman for Brunner, Patrick Gallaway, says the secretary does not plan to appeal the court's ruling. He says Brunner hopes that the state supreme court resolves the case in a timely manner.

"What we'd hope is that the court will quickly affirm their previous clear guidance to liberally construe election laws in favor of the right to vote," Gallaway says. "So our hope is that these thousand Ohio voters will not be disenfranchised based on a hyper-technical interpretation of Ohio law."

Steve Stivers leads Democrat Mary Jo Kilroy by less than 600 votes. The outcome of the race might very well be determined by the tallying of provisional ballots. More than 27,000 provisional ballots remain uncounted; a portion of those will affect the outcome of the 15th congressional district race.

The state supreme court gave both sides until Monday morning to file evidence and briefs.