Perhaps the most contentious of Blackwell's pro-Bush decisions was his directive to county boards of election concerning provisional ballots. Provisional ballots, whose purpose is to ensure citizens aren't incorrectly disenfranchised, go to individuals who claim to be eligible to vote but whose names don't appear on a voter registration list at the polling location.
After the polls close, the eligibility of these voters is determined and the ballot is either counted or ignored. The Help America Vote Act of 2002 (HAVA), Congress' response to the Florida election disaster, requires that provisional ballots be issued to people who declare themselves eligible and registered in the jurisdictions in which they are attempting to vote but whose names don't appear on the election rolls.
In Directive 2004-33 to Ohio's county boards of election, Blackwell ignored important aspects of HAVA. First, the law clearly requires only that individuals declare themselves eligible to vote by signing an affirmation. But Blackwell made poll workers the arbiters of eligibility by demanding that they confirm in some manner -- he failed to specify the proof that poll workers were permitted to require -- the eligibility of would-be voters.
Second, Blackwell's directive outlined procedures for issuing provisional ballots only to individuals who have moved since the last election. He failed to recognize that people might not have moved but might have been erroneously excluded from the registration lists.
Amazingly, Blackwell ignored the potential existence of the very election errors that inspired HAVA.
Another difference between Directive 2004-33 and one interpretation of HAVA concerns the inclusion of individuals who mistakenly go to the wrong polling place -- a common occurrence due to people moving, to the shifting of precinct boundaries caused by congressional redistricting and to the imprecise mailing of polling place notifications. Under Blackwell's narrow interpretation, an individual who mistakenly goes to a polling place in the wrong precinct wasn't given a provisional ballot.
A broader interpretation would have allowed the issuance of provisional ballots to anyone who attempts to vote in any precinct in their county. But Blackwell didn't adopt his narrow interpretation before the presidential election heated up.
"Provisional voting is a way to ensure every eligible voter who shows up at the polls on Election Day can cast a ballot," says Ohio's HAVA implementation plan, which Blackwell's office authored in July 2003.
Another section instructs county boards of election "to adopt provisional voting policies that are weighted more toward inclusion in the voting process than challenges and exclusion in the ballot process."
Those most likely to have been excluded from voting due to Blackwell's narrow interpretation were those who move frequently, which tends to be young people and poor people living in urban areas. Both classes have historically supported Democratic candidates.
Also included in the litany of Blackwell's pro-Bush decisions was his directive to ignore voter registration cards not printed on 80-pound stock. No substantive reason for requiring the heavy paper exists, leaving many to conjecture that Blackwell's intent was to exclude as many newly registered voters as possible.
By all counts, Democrats registered far more Ohio voters in 2004 than did Republicans. Caving to public outcry and threatened lawsuits, Blackwell eventually repealed the nonsensical paper weight requirement.
The Prison Reform Advocacy Center (PRAC), a Cincinnati-based prisoners' rights advocacy group, contends that Blackwell also failed in his duties to instruct boards of election on the right of ex-convicts to vote. An analysis prepared by the group found that, even though Ohio law clearly allows former prisoners to vote, 20 boards of election, including Hamilton County's, repeatedly provided erroneous information to researchers posing as former prisoners.
African Americans, who tend to vote Democrat, comprise 49 percent of Ohio's prison population. As a result of a PRAC lawsuit against Blackwell, the Ohio Department of Rehabilitation and Correction agreed to notify parolees of their voting rights.
Blackwell's instructions to boards of election on the counting of provisional ballots also appear to be incomplete and unclear. Because of the Florida fiasco, HAVA requires the votes of those who were erroneously purged from election rolls be counted.
To ensure full compliance with HAVA, provisional ballots cast in the 2004 election should have been compared with the list of 1.2 million individuals purged from Ohio's registration lists during 2001-2002. If any of these purged voters cast a provisional ballot, the eligibility of such individuals should have been reexamined to ensure that they were not purged incorrectly.
Directive 2004-48, which contains Blackwell's instructions for counting provisional ballots, stipulates only that the ballots be compared to current registration lists, not to the list of purged individuals.
Other pertinent information also appears to be missing from Directive 2004-48, a two-page letter light on specific instructions. For example, because this directive provides no specifics with regard to verifying the authenticity of signatures, one county might exclude a ballot based on its signature comparison while another might include it. In Bush vs. Gore, the U.S. Supreme Court held that states must have specific standards that ensure a uniform statewide count.
Finally, Blackwell sent a letter in October to GOP supporters, stressing the importance of the gay marriage ballot issue as a magnet to attract conservatives to the polls, where they would also vote for Bush. Several Democratic state senators, among others, contended that such partisan support for a ballot issue was inappropriate, because the secretary of state renders decisions on all statewide ballot issues, including certifying the authenticity of signatures collected to put the issue on the ballot and approving the ballot language.
Throughout the months leading up to the election, whenever Blackwell reached a fork in the road of election procedure and election law, he took the path that favored Bush. Unfortunately, due to Republican control of the Statehouse, it's almost certain that no serious, independent investigation of Blackwell's actions will ever be undertaken.