CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/9/2023 1

Provisional Ballots Cast in the Wrong Precinct 

Because of Poll-Worker Error 

Hunter v. Hamilton County Board of Elections 

(Susan J. Dlott, S.D. Ohio 1:10-cv-820) 

In the 2010 election for Hamilton County Juvenile Court judge, 

twenty-three votes separated the two candidates with the validity of 

many provisional ballots unresolved. The trailing candidate filed a 

federal action to expand the number of provisional ballots deemed 

valid when she learned that some, but not all, cast in the wrong precinct would be counted if they were cast in the wrong precinct because of poll-worker error. The district court ordered an investigation into which ballots were cast in the wrong precinct because of 

erroneous instructions from poll workers. A circuit judge stayed the 

order, but a full panel dissolved the stay one week later. Litigation 

continued for eighteen months, and then the plaintiff joined the juvenile-court bench. 

Subject: Provisional ballots. Topics: Provisional ballots; election 

errors; enjoining certification; interlocutory appeal; equal 

protection; matters for state courts. 

After ballots were counted in the 2010 general election, Tracie Hunter was 

twenty-three votes behind John Williams in the election for Hamilton County Juvenile Court judge.1

 On Sunday, November 21, Hunter filed a federal 

action in the Southern District of Ohio’s Cincinnati courthouse, which is in 

Hamilton County, asking that the vote count include all provisional ballots 

cast in the wrong precinct because of poll-worker error, noting that the 

county was counting some such ballots.2

 “The [elections] board accepted for 

counting twenty-seven provisional ballots cast at the board’s offices in downtown Cincinnati before Election Day but for which voters, because of pollworker errors, received ballots from the ‘wrong precinct.’”3

For financial and other administrative reasons, Hamilton County has decided to have some buildings serve as the polling location for several nearby 

precincts. In such locations, voters must go to the correct “precinct”—i.e., 

table—within the location to cast a valid ballot. To assist voters in finding 

the correct table, the County assigns an extra poll worker as a “precinct 

1. Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 219, 222 (6th Cir. 2011); Hunter v. 

Hamilton Cty. Bd. of Elections, 850 F. Supp. 2d 795, 799 (S.D. Ohio 2012); see Service Employees Int’l Union v. Husted, 887 F. Supp. 2d 761, 774 (S.D. Ohio 2012); see also Hunter 

Sues to Block Hamilton County Juvenile Judge Count, Cincinnati Enquirer, Nov. 23, 2010 

(identifying Hunter as a Democrat and Williams as a Republican); Mark Niquette, Local 

Case May Set U.S. Voting Precedent, Columbus Dispatch, Jan. 19, 2011, at 3B (same). 

2. Complaint, Hunter v. Hamilton Cty. Bd. of Elections, No. 1:10-cv-820 (S.D. Ohio Nov. 

21, 2010), D.E. 1; Hunter, 635 F.3d at 225; Hunter, 850 F. Supp. 2d at 799. See generally Richard L. Hasen, What to Expect When You’re Electing, Fed. Law., June 2012, at 35 (summarizing the litigation). 

3. Richard L. Hasen, The Voting Wars 147 (2012). 
Provisional Ballots Cast in the Wrong Precinct Because of Poll-Worker Error 

2 Federal Judicial Center 10/9/2023 

guide” at sixteen of its seventeen polling locations with four or more precincts.4

With her complaint, Hunter filed a motion for a temporary restraining 

order and a preliminary injunction.5 Williams sought to intervene,6 as did the 

Ohio Democratic Party7 and the Northeast Ohio Coalition for the Homeless.8

The court assigned the case to Judge Susan J. Dlott, who held a hearing 

from 4:50 to 8:05 p.m. on the following day, after a full day on the bench presiding over another case.9

 Because the proceeding was not ex parte, she regarded the applicable motion as one for a preliminary injunction.10

That evening, Judge Dlott granted the intervention motions.11 She also 

granted a preliminary injunction, requiring Hamilton County to investigate 

whether provisional ballots cast in the wrong precincts were so cast because 

of poll-worker errors, so that the county could apply a uniform policy of 

whether to count them.12 Because the close election was already subject to a 

mandatory recount, Judge Dlott declined to enjoin certification of the election.13

On the next day, Hamilton County certified Williams the winner by 

twenty-three votes.14 On the day after that, the day before Thanksgiving Day, 

a judge on the court of appeals stayed Judge Dlott’s injunction.15 The circuit 

judge ruled alone, “[b]ecause of the exigent nature of the request and the ap4. Hunter, 635 F.3d at 223; see also Hasen, supra note 3, at 148. 

5. Motion, Hunter, No. 1:10-cv-820 (S.D. Ohio Nov. 21, 2010), D.E. 2; Hunter, 635 F.3d 

at 226; Hunter, 850 F. Supp. 2d at 799.

6. Williams Motion to Intervene, Hunter, No. 1:10-cv-820 (S.D. Ohio Nov. 22, 2010), 

D.E. 10; see Transcript at 4, id. (Nov. 22, 2010, filed Nov. 26, 2010), D.E. 18. 

7. Ohio Democratic Party Motion to Intervene, Hunter, No. 1:10-cv-820 (S.D. Ohio Nov. 

22, 2010), D.E. 98; Transcript, supra note 6, at 3. 

8. NEOCH Motion to Intervene, Hunter, No. 1:10-cv-820 (S.D. Ohio Nov. 22, 2010), 

D.E. 8; Transcript, supra note 6, at 3. 

9. Docket Sheet, Hunter, No. 1:10-cv-820 (S.D. Ohio Nov. 21, 2010) [hereinafter S.D. 

Ohio Docket Sheet]; Transcript, supra note 6, at 3, 133; Hunter, 850 F. Supp. 2d at 799; see

Judicial Candidate Tracie Hunter Questions Uncounted Votes, Cincinnati Enquirer, Nov. 23, 

2010. 

For this report, Tim Reagan interviewed Judge Dlott and her law clerk Sarah Fairweather 

by telephone on July 30, 2012. 

10. Preliminary Injunction, Hunter, No. 1:10-cv-820 (S.D. Ohio Nov. 22, 2010), D.E. 13, 

2010 WL 4878957; Hunter, 850 F. Supp. 2d at 799–800 n.2. 

11. Hunter, 850 F. Supp. 2d at 799–800; Transcript, supra note 6, at 6–8 (noting no opposition to the motion by Williams); see Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 

219, 226 (6th Cir. 2011). 

12. Preliminary Injunction, supra note 10, at 1, 5–7, 9; Hunter, 635 F.3d at 226; Hunter, 

850 F. Supp. 2d at 799–800; see Local Election Fight Now in Federal Court, Cincinnati Enquirer, Nov. 24, 2010 [hereinafter Local Election Fight]. 

13. Preliminary Injunction, supra note 10, at 1, 7–9; Hunter, 635 F.3d at 226. 

14. Hunter, 635 F.3d at 226; Ohio ex rel. Painter v. Brunner, 128 Ohio St. 3d 17, 19, 941 

N.E.2d 782, 788 (2011); see Local Election Fight, supra note 12. 

15. Stay Order, Hunter v. Hamilton Cty. Bd. of Elections, No. 10-4481 (6th Cir. Nov. 24, 

2010); Hunter, 635 F.3d at 226; see Cincinnati Appeals Court Blocks Judge Vote Probe, Cincinnati Enquirer, Nov. 25, 2010. 
Provisional Ballots Cast in the Wrong Precinct Because of Poll-Worker Error 

Federal Judicial Center 10/9/2023 3

proaching Thanksgiving holiday.”16 One week later, a full appellate panel dissolved the stay.17

On December 13, Ohio began to subpoena 2,200 poll workers to investigate whether poll-worker error caused provisional ballots to be cast in incorrect precincts.18 The term of office for the Juvenile Court position began on 

January 1, 2011.19 On Friday, January 7, Ohio’s supreme court granted Williams mandamus relief and ordered Ohio to limit its investigation of pollworker error to the method used to identify the original obvious errors that 

led to the counting of some incorrectly cast provisional ballots.20 That same 

day, Ohio’s secretary of state issued a directive specifying which types of incorrectly cast provisional ballots would be counted.21

On January 10, a new secretary of state for Ohio came to office; he replaced his predecessor’s directive with one forbidding the counting of additional provisional ballots.22 On January 12, Judge Dlott nullified by injunction the new secretary’s directive and ordered certain categories of incorrectly cast provisional ballots counted by January 22, the deadline for amending 

certification of the election.23 On January 14, Judge Dlott enjoined the election results from going into effect until further order of her court.24

On January 27, the court of appeals affirmed Judge Dlott’s November 22, 

2010, injunction and remanded for further proceedings on which miscast 

provisional ballots should be counted.25 A retired judge filled the elective position at issue while litigation continued.26

16. Stay Order, supra note 15, at 1. 

17. Order, Hunter, No. 10-4481 (6th Cir. Dec. 1, 2010); Hunter, 635 F.3d at 226; see Rejected Ballots to Be Investigated, Cincinnati Enquirer, Dec. 2, 2010. 

18. Painter, 128 Ohio St. 3d at 22, 941 N.E.2d at 790; see Hunter, 635 F.3d at 227. 

19. Painter, 128 Ohio St. 3d at 18, 941 N.E.2d at 786. 

20. Id. at 33, 941 N.E.2d at 798; Hunter, 635 F.3d at 228–29. 

21. Hunter, 635 F.3d at 228–29; Hunter v. Hamilton Cty. Bd. of Elections, 850 F. Supp. 

2d 795, 800 (S.D. Ohio 2012); Order at 4–5, Hunter v. Hamilton Cty. Bd. of Elections, No. 

1:10-cv-820 (S.D. Ohio Jan. 12, 2011), D.E. 39 [hereinafter Jan. 12, 2011, Order]. 

22. Hunter, 635 F.3d at 229–30; Jan. 12, 2011, Order, supra note 21, at 5; see New Secretary of State: Don’t Count Provisional Ballots in Contested Vote, Cincinnati Enquirer, Jan. 11, 

2011. 

23. Jan. 12, 2011, Order, supra note 21, at 1, 10; Hunter, 850 F. Supp. 2d at 800; Hunter, 

635 F.3d at 230–31; see Judge Choice Thrown Into Chaos, Cincinnati Enquirer, Jan. 13, 2011. 

24. Order, Hunter, No. 1:10-cv-820 (S.D. Ohio Jan. 14, 2011), D.E. 47; Hunter, 635 F.3d 

at 231; see Federal Judge Wants Explanation on Lack of Ballot Count, Cincinnati Enquirer, 

Jan. 15, 2011. 

25. Hunter, 635 F.3d at 247; Hunter, 850 F. Supp. 2d at 800, 832–33; see Appeals Court: 

Ballots Cast Aside Because of Poll-Worker Error Should Be Counted, Cincinnati Enquirer, 

Jan. 28, 2011; Edward B. Foley, How Fair Can Be Faster: The Lessons of Coleman v. Franken, 

10 Election L.J. 187 (2011) (judging the appellate opinion one of “the most significant implementation[s] of the Equal Protection ruling in Bush v. Gore[, 531 U.S. 98 (2000)]”); Daniel P. Tokaji, Election Law in a Nutshell 174–75 (2013). 

26. See Juvenile Court Election Now in Federal Court, Cincinnati Enquirer, July 19, 2011 

[hereinafter Now in Federal Court]. 
Provisional Ballots Cast in the Wrong Precinct Because of Poll-Worker Error 

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The case could not be resolved without a full examination of the facts.27

Judge Dlott presided over a three-week injunction trial from July 18 to August 5, 2011.28 On September 29, Hamilton County’s other juvenile court 

judge announced her retirement.29 The governor appointed Williams to fill 

her seat.30 He would have to run in 2012 for the two years remaining in the 

unexpired term.31

On February 8, 2012, Judge Dlott ordered the counting of provisional 

ballots cast in the wrong precinct.32 She also observed, 

Ohio’s precinct-based voting system that delegates to poll workers the 

duty to ensure that voters are directed to the correct precinct but which 

provides that provisional ballots cast in the wrong precinct shall not be 

counted under any circumstance, even where the ballot is miscast due to 

poll-worker error, is fundamentally unfair and abrogates the Fourteenth 

Amendment’s guarantee of due process of law. However, because Plaintiffs 

did not challenge the constitutionality of Ohio’s election statutes, this Court 

is without jurisdiction to order a remedy.33

After the provisional ballots were counted, Hunter was declared the winner, and she joined the juvenile court bench 18 months after election day.34

Appeals from Judge Dlott’s final ruling were voluntarily dismissed on July 

12.35

Judge Dlott had high praise for the lawyering in this case.36 Although the 

case was politically charged, the lawyers presented their arguments with great 

professionalism, and it was difficult to discern political agendas from a casual 

listen to the conversations.37

27. Interview with Hon. Susan J. Dlott and her law clerk Sarah Fairweather, July 30, 2012 

(observing that the capacity for poll-worker error in directing voters to the correct precinct 

was distressing). 

28. S.D. Ohio Docket Sheet, supra note 9; see Now in Federal Court, supra note 26. 

29. See Retirement Adds Uncertainty to Juvenile Court Race, Cincinnati Enquirer, Sept. 

29, 2011. 

30. See Williams Appointed Juvenile Court Judge, Cincinnati Enquirer, Nov. 11, 2011. 

31. See id. 

32. Hunter v. Hamilton Cty. Bd. of Elections, 850 F. Supp. 2d 795, 847 (S.D. Ohio 2012); 

see Robert Barnes, In Ohio, a Fight Over Votes Not Counted, Wash. Post, Aug. 6, 2012, at A1. 

33. Hunter, 850 F. Supp. 2d at 847; see Service Employees Int’l Union v. Husted, 887 F. 

Supp. 2d 761, 776 (S.D. Ohio 2012) (noting that the jurisdictional defect resulted from the 

plaintiffs’ failure to give proper notice to Ohio’s attorney general). 

34. See Bailiff Hire Prompts Questions, Cincinnati Enquirer, June 17, 2012, at B1; Will 

Ohio Count Your Vote, Cincinnati Enquirer, July 29, 2012, at A1. 

35. Orders, Hunter v. Hamilton Cty. Bd. of Elections, Nos. 12-3224 and 12-3266 (6th Cir. 

July 12, 2012). 

36. Interview with Hon. Susan J. Dlott and her law clerk Sarah Fairweather, July 30, 2012. 

37. Id.