Election Law - Statutory Interpretation - Sixth Circuit Employs Clear Statement Rule in Holding That the Help America Vote Act Does Not Require States to Count Provisional Ballots Cast outside Voters' Home Precincts
ELECTION LAW--STATUTORY INTERPRETATION--SIXTH CIRCUIT EMPLOYS CLEAR STATEMENT RULE IN HOLDING THAT THE HELP AMERICA VOTE ACT DOES NOT REQUIRE STATES TO COUNT PROVISIONAL BALLOTS CAST OUTSIDE VOTERS' HOME PRECINCTS. --Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004) (per curiam).
When an ambiguous federal statute threatens to restrict state sovereignty, courts frequently employ clear statement rules. These rules push courts toward an interpretation of the statute that favors keeping state laws intact. (1) Recently, in Sandusky County Democratic Party v. Blackwell, (2) the Sixth Circuit employed such a clear statement rule in holding that the Help America Vote Act (3) (HAVA) does not require states to count a provisional ballot (4) if it was cast outside the voter's home precinct. (5) Although Blackwell's ultimate interpretation of HAVA may have been appropriate, its invocation of this clear statement rule was not. The Blackwell court's method of statutory construction ignored the federalism balance contemplated by the Constitution's Elections Clause and gives partisan state officials excessive leeway to manipulate elections for federal office.
On September 16, 2004, Ohio Secretary of State J. Kenneth Blackwell issued a directive to all Ohio County Boards of Elections detailing procedures for handling provisional ballots. (6) Citing Ohio law, Blackwell instructed poll workers not to provide provisional ballots to anyone who was not a current resident of that specific precinct. (7) Claiming that the directive violated HAVA, (8) on September 27, 2004, the Sandusky County Democratic Party brought suit under 42 U.S.C. [section] 1983, seeking a preliminary injunction modifying the directive. (9)
The district court granted the injunction. (10) Preliminarily, it held that HAVA created a private right enforceable through [section] 1983, that the plaintiffs had standing to bring their claim, and that the suit was timely. (11) Turning to the merits, the court focused on HAVA's legislative history and its goal of expanding the federal franchise; it found that Ohio voters were entitled to cast provisional ballots provided they were voting in the correct county. (12) The court also rejected the defendant's contention that even if HAVA allows voters to cast out-of-precinct ballots, it does not require states to count those ballots; it found both the statute's text and its broader purpose suggested otherwise. (13) Having concluded that Blackwell's directive thus conflicted with HAVA, the district court issued an injunction requiring Blackwell to count otherwise valid provisional ballots cast in the correct county. (14)
The Sixth Circuit affirmed in part and reversed in part. (15) In a per curiam opinion, (16) the court held that HAVA does not require a state to count provisional ballots cast in the wrong precinct. (17) The panel first highlighted the role of the precinct system in the states' ability to conduct elections in an orderly manner. (18) Then, after agreeing with the district court's conclusions that HAVA was enforceable in a [section] 1983 action, (19) that the plaintiffs had standing, (20) and that parts of Blackwell's directive failed to comply with HAVA, (21) the panel examined the casting and tabulating of out-of-precinct ballots. First, the panel read HAVA's legislative history to indicate that HAVA requires states to provide provisional ballots only to voters attempting to vote in the correct polling location. (22) Additionally, the panel reasoned that the logistical problems caused by voters being able to vote at any polling place in the county would threaten the franchise and undermine HAVA's purpose. (23) Blackwell could thus require voters to affirm that they were voting in the correct precinct before allowing them to cast provisional ballots. (24)
The panel next examined whether Ohio is required to count provisional ballots cast in the wrong precinct; it viewed this question as separate from whether HAVA permits voters to cast out-of-precinct provisional ballots. …