After making headlines for months because of court cases regarding early voting in Ohio, Secretary of State Jon Husted is once again battling with a judge over voting. This time, the case concerns Husted’s 11th hour directive that could cause legitimate provisional ballots to be thrown out in the state of Ohio. Provisional ballots were cast by voters whose registration or identification was called into question for some reason when they went to the polls.

After multiple courts ensured that early voting would remain intact in Ohio, despite Husted’s efforts to restrict it, at 7pm on the Friday before voting began, Husted issued a directive that shifted the burden of correctly filling in a provisional ballot from the poll workers to the voters, and instructed officials to throw out any ballots with incorrect information.

This directive directly contradicted an agreement that had already been reached with US District Judge Algenon Marbley, which stated that the burden was on the poll worker. In addition to disregarding the agreement with the Judge Marbley, voting rights advocates who filed the current lawsuit pointed out that the directive also violated Ohio law, which states:

“the appropriate local election official shall record the type of identification provided, the social security number information, the fact that the affirmation was executed, or the fact that the individual declined to execute such an affirmation and include that information with the transmission of the ballot . . . .”

On Wednesday, the day after Election Day, Husted sent his lawyers to US District Judge Algenon Marbley’s court room once again. Arnold Epstein represented the state of Ohio, and was responsible for defending Husted’s directive.

THE COURT: Mr. Epstein, would you agree that voting is the linchpin of our democracy?

MR. EPSTEIN: Yes, Your Honor.

THE COURT: I do too. What concerned me about the 2012-54 directive is that it was filed on a Friday night at 7 p.m. The first thought that came to mind was democracy dies in the dark. So, when you do things like that that seeks to avoid transparency, it appears, then that gives me great pause but even greater concern.

The transcript shows that Judge Marbley challenged Epstein again and again over the directive:

THE COURT: It only became the voter’s burden after the secretary declared it was the voter’s burden and sent you in here to defend it. You haven’t been able to show me any law that would justify that, nor have you shown me any facts that would require him to change it.

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THE COURT: Show me where it’s meant. Show me the legislative history. Show me the facts that the secretary used to make the decision to change this directive at seven o’clock on a Friday night on the eve of an election. I want to see it, and I want to see it now. Show it to me.

MR. EPSTEIN: Your Honor, I have no legislative history to present to the Court.

A ruling in this case is expected later today. Provisional ballots will be counted on November 17th in Ohio. Although the outcome of this election has already been decided, Andrew Cohen at the Atlantic argues that this court case matters in terms of having accurate data on the final popular vote count in Ohio for the 2012 election and it matters in terms of setting a legal precedent for future elections.

Media Resources: Feminist Newswire 08/13/12, 09/10/12, 10/08/12, 10/17/12, 11/07/12; Think Progress 11/03/12, The Atlantic 11/04/12, 11/08/12; Court Document 11/07/12

Photo via Flickr user by Vox Efx under creative commons license.