An appeals court ruled yesterday that a federal judge erred in determining that Franklin County's disputed provisional ballots can be counted.

The 6th U.S. Circuit Court of Appeals ruled that the issue involves state law -- not federal -- and it sent the case back to the Ohio Supreme Court, where it started. The unanimous ruling was made by Judges Jeffrey S. Sutton, Cornelia G. Kennedy and David W. McKeague.

Secretary of State Jennifer Brunner said she will not appeal, but urged justices to "quickly affirm their previous clear guidance 'to liberally construe election laws in favor of the right to vote,' so as not to disenfranchise approximately 1,000 Ohio voters with a hypertechnical interpretation of Ohio law."

The decision puts a continued hold on two races that are too close to call: the 15th Congressional District, where Republican Steve Stivers leads Democrat Mary Jo Kilroy, and the 19th Ohio House District, where Democrat Marian Harris has a 40-vote lead over Republican Brad Lewis.

Stivers' lead grew to 594 votes yesterday after Madison County completed its vote count.

The outcome of the congressional race, though, will remain in limbo until legal challenges decide whether about 1,000 questionable provisional ballots in Franklin County -- out of 27,000 cast -- can be counted. State law requires all provisional votes to be counted together, so none can be tabulated until the court battle is over. It is unknown how many of those votes are from the 15th District, which covers a little more than 40 percent of the county.

A few thousand late absentee and overseas ballots also have to be counted.

The envelopes containing the questionable ballots are missing requested identification. They expressly stated that the voter's name and signature were "required." Last week, Judge Algenon L. Marbley of U.S. District Court in Columbus ruled that the issue belongs in federal court because other provisional-ballot questions recently had been agreed upon in a federal-court consent decree.

But that's not reason enough for other election cases to be moved there, the appellate judges determined.

For one thing, federal courts do not have the right to tell a state official how to carry out state law, the ruling states. In addition, there is no real federal issue in the provisional-ballots case that two Stivers supporters have raised.

"It involves only Ohio voters and Ohio public officials," the three-judge panel noted. "No federal court has the final say on what Ohio law means."

The Ohio Supreme Court immediately put a hold on opening the envelopes containing all the provisional ballots. Both sides were given until 10 a.m. Monday to file their evidence and legal briefs.

The Stivers-Kilroy race is one of just two congressional contests in the country that remain undecided.

Yesterday, Madison County officials released their final vote tally, which added 373 votes to Stivers' total and 258 to Kilroy's -- widening Stivers' lead by 115 votes. Union County released its final vote tally last week, which also padded Stivers' lead slightly.

The Kilroy campaign remains optimistic that once thousands of provisional and late absentee ballots from Franklin County are counted, she'll emerge victorious.

"(Stivers) didn't pick up enough votes out of Madison and Union counties to counter what we expect to happen in Franklin County," said Randy Borntrager, Kilroy's campaign manager. "We're confident that once all the votes are counted, Mary Jo Kilroy will come out in the lead."

The Stivers campaign isn't predicting an outcome, but spokesman Rob Nichols disputed statements from Brunner and the Kilroy campaign that the 1,000 ballots in question need to be included in the total. Nichols said requiring voter signatures is an important check against voter fraud, noting that Franklin County elections officials have referred 13 cases of possible voter fraud to prosecutors.

"This has never been an enfranchisement issue," Nichols said. "It's about following state law and not changing the rules of the game after the game has gone into overtime."

Sutton and McKeague were appointed by President George W. Bush, Kennedy by President Jimmy Carter. Marbley was chosen by President Bill Clinton.

jandes@dispatch.com

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