Dan Tokaji of the non-partisan Election Law @ Moritz blog reports that the GOP in the hot spot of Ohio, where Tokaji will be blogging all day, today added a significant charge to a multi-part lawsuit against Democratic Secretary of State Jennifer Brunner.

In a nutshell, the new charge alleges that Brunner’s directive for evaluating so-called provisional ballots – the ballots people fill out when their eligibility to cast a regular vote is challenged – allows for too much discretion on the part of county election officials.

It’s an argument Tokaji remembers from the GOP position in Bush v. Gore. Although the exact remedy they seek is not yet clear, it seems that Ohio Republicans want a court order making Brunner enforce a particular standard for evaluating the provisional ballots. Says Tokaji, “I suspect the real purpose of this lawsuit is to serve as a placeholder, in the event that Ohio turns out to be close enough to litigate.”

Although the general rule is not to assume partisanship of life-tenured federal judges, Tokaji writes, “The district judge assigned to the case, Judge [George] Smith, is a Reagan appointee who has been quite sympathetic to the Ohio Republican Party’s position in its prior motions.”

In 2004, Ohio’s secretary of state was Ken Blackwell, a Republican. Democrats fiercely litigated the issue of provisional ballot-evaluation then. Blackwell prevailed in his order to reject provisional ballots cast in the wrong precinct (even when they were cast by otherwise eligible voters.

Nonpartisan voting rights advocates including the ACLU and Brennan Center for Justice successfully challenged Brunner earlier this year on her decision to reject certain absentee ballot applications if applicants had failed to mark a check-box saying they were qualified voters. Those application forms had been distributed by the McCain campaign.

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