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Federal Judge Extends Provisional Ballot Ruling

A federal judge has extended a 2010 court decree that governs Ohio's provisional ballots and voter identification requirements, which voter advocates say has kept elections from becoming the "Wild West." The agreement ensures that election officials count votes cast provisionally when voters use the last four digits of their Social Security numbers, U.S. District Judge Algenon Marbley said Monday. He extended the order until the end of 2016, after the next presidential election in the battleground state.

Marbley said that without the decree, "there is nothing to prevent boards of election from returning to those haphazard and, in some cases, illegal practices, which previously resulted in the invalidation of validly cast ballots from registered voters."

The case stems from a 2006 state law that specified when provisional ballots could be counted toward vote totals. Under the law, a person who provided the last four digits of his or her Social Security number could vote provisionally. Advocates for homeless voters challenged the law in a federal complaint that year. And in 2010, then-Secretary of State Jennifer Brunner, the state's top elections official, entered into the consent decree. The decree included more options for provisional ballots and voter ID. For example, it incorporated a directive from Brunner that allows letters from public universities to serve as government documents for voting purposes. In addition, it defined "current" as a document issued within a year immediately preceding the date of the election in which a person seeks to vote. The decree was set to expire June 30, but the judge granted a temporary extension while the court weighed arguments in the case. Voter advocates had asked the judge to extend the decree indefinitely or at least until 2021. Marbley said an indefinite extension wasn't supported by law. A lawyer representing homeless voters argued before court in Columbus last month that without the decree, the state would return to the "Wild West," in which county election boards could apply vague requirements and some voters would be disenfranchised. Secretary of State Jon Husted argued against the extension, saying there's no evidence that a single Ohioan would be denied the right to vote if the decree expired. Husted's attorneys told the judge last month that the decree wasn't necessary, and Husted is committed to following the rules it sets out. Marbley noted that secretaries of state change frequently, and there's no guarantee a Husted successor would make the same commitment.

"A citizen's right to vote, however, cannot be at the mercy of the shifting legal interpretations of a single state officer, no matter how well intentioned he or she is," he wrote.

Arguing for the extension, Cleveland attorney Subodh Chandra said in court filings that without the order, homeless and poor voters who lack identification would in effect have to pay a "poll tax" to cast a ballot because they'd have to pay for proper identification. But attorneys for the state said the advocates' "strained" reading of the law was incorrect. "Ohio law mandates that any otherwise eligible voter who fails to present ID is permitted to cast a provisional ballot using the last four digits of his or her" Social Security number, they wrote in court filings. Chandra also argued that Husted never issued sworn testimony or provided evidence to show he would uphold the decree guidelines. Chandra represents the Northeast Ohio Coalition for the Homeless and the Columbus Coalition for the Homeless. The Ohio Democratic Party also has joined them as a plaintiff. Marbley, who is black, grew up in the South and received his bachelor's degree from the University of North Carolina. He has often spoken of the importance of voting rights to him personally based on events he saw growing up. President Bill Clinton appointed him to the bench in 1997.