Download Today's Revised Order

The confusing back and forth continues in Ohio. On Sunday evening October 29, the U.S. Court of Appeals for the Sixth Circuit issued a stay of the last week's order blocking enforcement of Ohio's voter ID on absentee ballots. As a result, voter ID is once again required for absentee ballots in the state. It is not clear at this point what will happen to any absentee ballots that were mailed by voters without ID in reliance on the lower court's order.

Chandra, representing Service Employees International Union 1199, said last night's court action guarantees more confusion among voters and poll workers and puts votes at risk of not being counted.

 

"We hope that the 6th Circuit is not taking the position that one must permit an election to be a train wreck before one tries to stop the wreck," Chandra said. "That's what appears to be happening."

Matthew Damschroder, director of the Franklin County Board of Elections, said that no matter what happens, there's time before the Nov. 7 election to ensure that absentee votes cast properly are counted. "We'll bend over backward to make sure votes count," he said.

The Sixth Circuit’s brief order grants the AG's motion to stay "except to the extent that the TRO orders all County Boards of Election to preserve all absentee ballots in their present form." The three-judge panel (Gibbons, McKeague, Tarnow [by designation]) stated that it "will issue an opinion shortly.” Today the Sixth Circuit issued a revised version of its stay order that included a brief dissent by Judge Tarnow, a federal district judge in Michigan sitting on the appeals panel by designation. His dissent stated its agreement with the “analysis and conclusions” of Judge Marbley’s decision to issue the TRO and related orders. The Amended Order continues to state that the panel “will issue an opinion shortly,” but that opinion apparently has not yet been released.

While analysis of this ruling must await the opinion, it would appear that, by preserving the ballots, the stay does not preclude a subsequent challenge to allegedly unequal disqualification of ballots for lack of ID. Rather, its immediate effect apparently is to permit, contrary to the TRO, the continued collection of ID information as part of the absentee balloting process. The status of absentee ballots submitted without ID during the time in which the TRO was in effect is not immediately clear, although perhaps their disqualification would be open to challenge subsequently, along with (for example) those that contained the wrong driver's license number.