Video: Ruling on provisional ballots

updated 10/24/2004 7:58:13 PM ET 2004-10-24T23:58:13

A judge's order requiring some provisional ballots in Michigan to be counted even if they are cast in the wrong precinct was put on hold Sunday, the second time in as many days that a federal appeals court dealt a setback to Democrats who wanted to ease voting restrictions.

A 6th U.S. Circuit Court of Appeals panel in Cincinnati issued a stay of a lower court ruling that had reversed Michigan's policy for counting provisional ballots, saying it will hear an appeal of the issue quickly. On Saturday, the same three-judge panel had rejected a similar ruling out of Ohio.

Provisional ballots -- required in all states for the first time this year -- are used when voters say they are properly registered but their names are not on the registration rolls. The ballots are later counted if elections officials determine the voter is validly registered.

Michigan officials had ordered that only provisional ballots cast in the correct precinct should be counted, but a federal judge in Michigan had issued an injunction Tuesday saying ballots should be counted for federal races, including president, if the votes were cast in the wrong precinct but the right city, township or village.

Appeal promised
The panel that stayed that ruling promised to hear an expedited appeal of the case, but it was unclear whether a decision would be reached before Election Day on Nov. 2.

"It's by no means over, but the likelihood that the stay will be in effect on Election Day is greater than the chance it won't be," said Michael Pitt, a lawyer who sued the Michigan secretary of state's office over its provisional ballots policy on behalf Michigan Democrats.

Pitt said he expected written arguments to be due Monday afternoon.

A message seeking comment from the Secretary of State's office was not immediately returned Sunday. Michigan elections officials have said voters who show up in the wrong polling places will be directed to the correct one.

Rules on counting provisional ballots vary by state, but Democrats have sued in several swing states where elections officials ruled that such ballots cast outside the voter's precinct are invalid.

Earlier rulings thrown out
Judges had ruled in favor of Democrats in Ohio and Michigan, but the 6th Circuit effectively nullified those rulings this weekend. On Saturday, the court threw out a lower-court decision that said provisional ballots are valid as long as they are cast in the correct county.

In Florida, a federal judge ruled Thursday that the state must reject provisional ballots if they are cast in the wrong precinct. In Missouri and Colorado, judges have ruled that votes in the wrong place don't have to be counted.

Democrats claim the stricter rules disproportionately hurt poor people, who tend to move more often and may not know their correct polling place. They also contend such rules violate the Help America Vote Act, although the U.S. Justice Department has weighed in on the side of election officials.

Michigan, in its appeal filed Wednesday, argued that changing course at this point could jeopardize an orderly election or timely certification of the results. It accused Michigan Democrats and others of delaying the suit for months and attempting to "railroad" it through the courts at the last minute.

The Michigan Democratic Party said the state should have focused instead on implementing the judge's order instead of appealing.

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