Sandusky County Democratic Party et al. v. J. Kenneth Blackwell, Per Curiam, October 26 [holding that Ohio voters who use provisional ballots must cast those ballots in their own precincts, overruling a contrary lower-court decision that would have counted them so long as they were cast in the correct county, and upholding a policy originally announced by Ohio Secretary of State Kenneth Blackwell]. Excerpt:

In Ohio, like many other states, a voter may cast a ballot only in his or her precinct of residence. See Ohio Rev. Code Ann. § 3503.01 (West 2004) (providing that an eligible voter "may vote at all elections in the precinct in which the citizen resides"); Ohio Rev. Code Ann. § 3599.12(A)(1) (West 2004) (making it a crime under Ohio law for a voter to knowingly vote anywhere except in the precinct in which he or she resides). As such, in Ohio, HAVA requires that a provisional ballot be issued only to voters affirming that they are eligible to vote and are registered to vote in the precinct in which they seek to cast a ballot. Directive Number 2 satisfies this requirement, and is even more lenient. Directive Number 2 requires only that if an individual wishes to cast a provisional ballot after being advised that he or she does not appear to be eligible to vote in the precinct in question, the individual shall be permitted to cast a provisional ballot upon executing the following written affirmation:

I affirm that my name is _________, that my date of birth is _________, and at this time my voting residence is _______ in the City/Village of _______ in _______ County of the State of Ohio and that this is the only ballot I am casting in this election. If I am voting elsewhere than the precinct where I reside, I understand that my entire ballot may not be counted.

Although this affirmation does not require voters to affirm in so many words that they are eligible to vote or registered in their assigned precinct, this aspect of Directive Number 2 comports with HAVA's requirements because it asks less of voters than HAVA permits. HAVA's requirements "are minimum requirements," permitting deviation from its provisions provided that such deviation is "more strict than the requirements established under" HAVA in terms of encouraging provisional voting, and is "not inconsistent with the Federal requirements" mandated by HAVA. See 42 U.S.C. § 15484.

HAVA is quintessentially about being able to cast a provisional ballot. No one should be "turned away" from the polls, but the ultimate legality of the vote cast provisionally is generally a matter of state law. Any error by the state authorities may be sorted out later, when the provisional ballot is examined, in accordance with subsection (a)(4) of section 15482. But the voter casts a provisional ballot at the peril of not being eligible to vote under state law; if the voter is not eligible, the vote will then not be counted. Directive 2 exactly preserves this distinction, while generally curing the other defects correctly found by the district court.

Read the full text of the opinion here [PDF]. Reported in JURIST's Paper Chase here.