Disputed provisional ballots that could help decide the 15th Congressional District race will not be counted until at least Friday, giving a federal judge time to make a ruling, the parties agreed yesterday.

U.S. District Court Judge Algenon L. Marbley said he plans to rule by 5 p.m. Thursday after both sides in the dispute file their legal arguments by the end of the day today.

Thus far, none of the 27,000 provisional ballots cast in Franklin County on Election Day has been counted.

At issue are an estimated 1,000 provisional ballots that are in dispute because voters failed to print and/or sign their names on the ballot envelopes or for some other defect.

The outcome could be decisive in the razor-close 15th District race between Republican Steve Stivers and Democrat Mary Jo Kilroy, as well as in at least one close Ohio House race.

Two county voters, acting on behalf of the Stivers campaign, sued Ohio Secretary of State Jennifer Brunner last week in the Ohio Supreme Court saying state law requires voters to print and sign their names -- and that ballots without both shouldn't be counted.

But Brunner disagrees and sought to have the case moved to federal court and consolidated with a pending 2006 lawsuit that also dealt with the counting of provisional ballots.

Such ballots are cast primarily when voters move and fail to update the address on their registration or when their names don't appear in the poll books. They are held for 10 days while voter eligibility is determined.

Although the Stivers campaign argued that the case belongs before the Ohio Supreme Court because it deals with state law, Marbley rejected the request yesterday.

Marbley concluded that the federal court should hear the case because it deals in part with an interpretation of a court order from the pending federal case as well as federal equal-protection issues.

John W. Zeiger, arguing for the Stivers campaign, said the state law on provisional ballots is clear -- requiring the voter's name and signature on the envelope.

"The law is black and white," Zeiger said.

But Assistant Ohio Attorney General Richard N. Coglianese said poll workers have the responsibility to look at the ballot when they accept it. If something is missing, it is the poll workers' fault for not pointing that out.

"We are penalizing the voter for a mistake that could have very easily been corrected," he said.

The federal court already has ruled that a provisional ballot cannot be rejected because of a poll worker error, the judge noted yesterday.

"In this court's view, what is fundamental is that people aren't disenfranchised that is the cornerstone of democracy, being able to participate," Marbley said yesterday.

Marbley, appointed by President Clinton, also chided the Stivers campaign for going to the all-Republican Ohio Supreme Court first, saying it raises concerns about "forum shopping."

In an unrelated case yesterday, U.S. District Court Judge George C. Smith ordered the Franklin County Board of Elections and Brunner "to make all reasonable accommodation" to allow disabled residents who are confined to their homes to correct mistakes on their absentee ballots for them to count.

mniquette@dispatch.com

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