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COLUMBUS - The 2004 presidential election in Ohio should not be considered a model for other states on how to issue provisional ballots, the director of the Cuyahoga County Board of Elections told a federal commission yesterday.

Referring to Ohio Secretary of State Ken Blackwell, Michael Vu told the U.S. Election Assistance Commission: "A number of decisions and mandates were made in an untimely fashion. … There were too many issues that were not resolved with statute and left to interpretation."

Mr. Vu, a Democrat, leveled his criticism after Mr. Blackwell, a Republican candidate for governor in 2006, told the commission: "Ohio's election system is not perfect, but our provisional balloting system and our educational efforts can stand, I believe, as a model for other states."

The four-member panel, which Congress created two years after the controversy over the 2000 presidential vote count in Florida, held the first in a series of nationwide hearings on provisional ballots. The forum was held at the Ohio State University Moritz College of Law.

Provisional ballots are given to voters whose names are not on the rolls. The ballots are counted in Ohio if the voter is registered and casts the ballot in the correct precinct.

Democrat John Kerry conceded the Nov. 2, 2004, election after determining that the counting of provisional ballots in Ohio would not prevent President Bush from triumphing in the Electoral College.

Mr. Vu cited the Sept. 16, 2004, directive from Mr. Blackwell to Ohio's 88 county boards of elections about how to hand out provisional ballots.

That directive stated: "Before issuing a provisional ballot as provided for under state or federal law, the poll workers must confirm that the voting residence address claimed by the voter is located within the area on the precinct map. ... Under no circumstances shall precinct poll workers issue a provisional ballot to a person whose address is not located in the precinct, or portion of the precinct, in which the person desires to vote."

Mr. Vu said the Cuyahoga County Elections Board found the directive inconsistent with how provisional ballots had been issued in previous elections.

Nine days before Election Day, a federal appeals court ruled that voters who believed they were in the correct precinct should be offered a provisional ballot, but only after the voter signs a statement that the vote won't be counted if he or she is in the wrong precinct.

Mr. Vu said Ohio should have made sure its law was consistent with the 2002 federal Help America Vote Act, which mandated provisional ballots in all 50 states.

"This did not occur," said Mr. Vu, who added that the state also should have precisely stated in law the definition of a valid provisional ballot.

Instead, the Secretary of State's office was "engrossed" with creating a statewide voter database and converting counties to new voting machines, Mr. Vu said.

Mr. Blackwell rejected Mr. Vu's assertions, saying then-Secretary of State Bob Taft in 1994 issued a directive to county boards of elections on the rules for provisional ballots, including that voters casting them must do so in the precinct where they are registered.

Mr. Blackwell also cited a Feb. 19, 2004, directive he issued to county boards of elections that stated: "A voter who declares that he or she is a qualified elector of the precinct and is eligible to vote in the election, but whose name does not appear on the poll list in an election for federal office, will be allowed to cast a provisional ballot at the polling place after completing, in the presence of an election official at the polling place, the written affirmation statement."

Mr. Blackwell said of the 153,539 provisional ballots cast in the presidential race in Ohio, 77 percent were counted, compared to California at 74 percent and the national average of 68 percent. "Most ballots were rejected because voters weren't registered. A few voters voted twice, and a small number were rejected because voters cast their ballots in the wrong precinct. This is not the result that the critics of Ohio had predicted," he said.

Commissioner Ray Martinez said Florida had placed its provisional ballot rules in state law, and he charged that Ohio had not. He asked Mr. Blackwell if Ohio planned to do so.

Mr. Blackwell said his directives "have full force of law."

Contact James Drew at
jdrew@theblade.com
or 614-221-0496.

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