COLUMBUS -- Republican lawmakers on Friday dropped their lawsuit against the state's elections chief over the handling of provisional ballots after a federal judge threatened them with contempt of court.
Secretary of State Jon Husted had defended his decision to require county election boards to follow U.S. District Court Judge Algenon Marbley's decree instead of state law when counting the ballots. At issue were requirements for providing identification when a voter has to cast a provisional ballot, typically a ballot cast in the wrong precinct.
Senate President Tom Niehaus and House Majority Leader Lou Blessing sued Husted, a fellow Republican, last month, arguing he was violating the state constitution by his orders to the county election boards.
But Niehaus and Blessing dropped the lawsuit Friday in a three-page filing in the state Supreme Court after the judge ordered them to follow his ruling the day before, state Senate GOP spokeswoman Angela Meleca said.
"We had no choice but to withdraw the suit," Meleca said. "We still believe in the merits of the case and are considering our legal options."
Blessing and Niehaus "respectfully disagree" and plan an appeal, House GOP spokesman Mike Dittoe said. Husted spokesman Matt McClellan said the secretary of state remains concerned about the conflict between state law and the federal order.
A 2006 state law laid out the requirements for when provisional ballots are counted, starting with voters who have only the last four digits of a Social Security number as identification.
In general, state law is more restrictive than the federal decree when it comes to prohibiting provisional ballots. For example, the law doesn't allow provisional ballots for votes cast in the wrong precinct because of a poll worker's mistake, whereas the decree would allow such votes to be counted.
Marbley issued a ruling late Friday explaining his reasoning and ordering lawmakers to file further concerns about the order in federal court, not state court.
"Conflicting orders to the Secretary from the Ohio Supreme Court would not only undermine the jurisdiction of this Court but would further confuse an already well-muddied electoral landscape in these critical months leading up to a presidential election," Marbley said.
A 2006 lawsuit by advocates for homeless voters challenged the state law, and in 2010 then-Secretary of State Jennifer Brunner, a Democrat, entered into a federal consent decree that was more lenient when it comes to provisional ballots.
Husted has issued orders to county election boards telling them to follow the consent decree when dealing with provisional ballots.
The lawsuit said the secretary of state's agreement to a consent decree that changes Ohio law "is contrary to the authority delegated to the Secretary of State under the Ohio Constitution and violates the fundamental principles of separation of power by allowing the Secretary to intrude into the legislative function."
Ohio's next major election is Nov. 6, when voters will cast votes in one of the country's most contested U.S. Senate races and elect the president. No Republican has ever taken the White House without winning Ohio, and only two Democrats have done so in more than a century.