Confused or Criminal – and Who Decides? That's the Question in Hamilton County

[Image courtesy of Hamilton County via Facebook]

Following the 2012 election Hamilton County (Cincinnati), Ohio identified a number of individuals who apparently cast two ballots in the November general election. Now that the list is public, the county is divided on what to do next. From the Cincinnati Enquirer:

Yamiah Davis was excited to vote in her first presidential election last fall.

The 21-year-old Avondale woman mailed in her early ballot in October, but then realized she had forgotten to include a form.

“I was excited to have my voice count,” Davis said. “When I realized what I did I thought, ‘Crap, my vote didn’t count.’ “

So, she said, she went to her polling location on Election Day and explained what happened. They told her to cast a provisional ballot, she said.

Now, she could face prosecution and wonders: “Am I going to jail?”

She and dozens of others – people who voted early by mail or in person at the Board of Elections, then cast a provisional ballot on Election Day – could face felony prosecution.

Her story isn’t unique. The Enquirer reviewed the records of the 59 cases of double voting in 2012 (where a voter cast both a regular ballot and a provisional ballot) and discovered that:

Of the 59:

• Five are the result of acknowledged errors by a board of elections office. In another nine cases, voters said they did what they did because a Board of Elections employee told them – or didn’t tell them – what to do.

• Eight are the result of postage problems.

• 12 came from people who were confused, according to the board’s own investigation.

While none of these second ballots were counted, the county prosecutor is still seeking to have the Board of Elections refer these cases so that they can be investigated and prosecuted further, as was the case with one individual charged with voting for up to eight relatives and – in a case that got lots of attention – a nun who cast an absentee ballot for a recently deceased fellow nun.

At a meeting yesterday, the Board of Elections deadlocked 2-2 on party lines on the question of referring the cases to the prosecutor. The decision now falls to Secretary of State Jon Husted, who must choose whether or not to allow further investigation of the disputed votes.

Democrats on the Board claim that the votes are obvious confusion and thus no further scrutiny is necessary:

“For us to put a cloud over their head is just wrong,” said Tim Burke, chairman of the Board of Elections and the county’s Democratic Party Chairman. “There are certainly more problems than anticipated. But at what point are we discouraging people …from doing what the law allows them do – vote provisionally – for the purpose of making sure their vote counted.”

But Republicans respond that the county can’t be sure without a thorough investigation by an office equipped to handle it:

Board of Elections member and Hamilton County Republican Party Chairman Alex Triantafilou countered that the Board didn’t have enough information to know the voter’s intent.

“There are built-in ways for people to know if their ballot arrived,” he said. “We don’t know what these people were thinking. Some may be acting with ill motive.”

The stakes are especially high because the prosecutor’s office is taking the position that intent – in other words, a conscious decision to cast a fraudulent second vote – isn’t necessary:

Elections board officials asked their lawyer – the Hamilton County Prosecutor’s Office – what to do with cases where they were two votes, even if only one vote counted.

Assistant Hamilton County Prosecutor Jim Harper wrote in an opinion the cases must be turned over to the prosecutor because state law says: “No person shall … vote or attempt to vote more than once at the same election by any means … .” And, he added, the statute doesn’t take into account “mental state.”

That position could be crucial, given that lack of intent has been used to dismiss allegations double voting elsewhere – including in Cuyahoga County (Cleveland) as well as in St. Peter, MN where an elderly woman who inadvertently cast two ballots was allowed to avoid prosecution in part because of evidence that she hadn’t realized her mistake.

It doesn’t help that the investigations have revived the rancorous partisan debate about voter fraud in Ohio, along with the now-familiar argument of access vs. integrity.

In a perfect world, one or more responsible officials would look at all the evidence and make a decision about the nature of each double vote and reserve prosecution for those individuals who truly did seek to game the system. Unfortunately, right now Ohio is not a perfect world – and so Secretary Husted’s decision about how to handle the remaining cases in Hamilton County will likely mean the difference between a lesson learned and a court appearance for the voters caught in the crossfire in the current debate.