A federal judge this morning rejected a request to move a dispute about the counting of provisional ballots to the Ohio Supreme Court, ruling that the fight belongs in federal court.

    U.S. District Court Judge Algenon L. Marbley now is holding a hearing for on a motion for a temporary order to halt the counting of provisional ballots until the legal fight is resolved.

    The outcome could help decide who wins the razor-close 15th Congressional District race between Republican Steve Stivers and Democrat Mary Jo Kilroy, as well as two close Ohio House races.

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

    Provisional 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.

    Two Franklin County voters, acting on behalf of Stivers' campaign, filed a lawsuit last week in the Ohio Supreme Court arguing that the provisional ballots in the dispute should not be counted because that would violate state law requiring specific actions, such as voters both printing and signing their names.

    But Ohio Secretary of State Jennifer Brunner disagrees with that interpretation of law and sought to have the case removed to federal court and consolidated with a pending 2006 federal case that also dealt with the counting of provisional ballots.

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

    It is too early to say if the ruling will be appealed, said John W. Zeiger during a court break this morning. Zeiger is arguing the case on of Stivers and two voters.

    Reading his ruling from the bench this morning, Marbley argued that case belongs in federal court in part because it deals with an interpretation on a court order from the pending federal case as well as federal equal-protection issues.

    Marbley noted, for example, that the 15th Congressional District includes portions of Franklin, Madison and Union counties - and that those counties use different provisional ballot envelopes.

    Franklin uses its own envelope that requires voters to print their names, while Madison and Union counties use envelopes proscribed by Brunner's office that requires poll workers to fill in the voter's name.

    An order from the federal case previously had said a provisional ballot cannot be rejected because of a poll worker error, and Marbley noted that is one of the elements of the legal fight.

    Marbley, appointed to the bench in 1997 by President Clinton, also chided the Stivers campaign for going to the all-Republican Ohio Supreme Court first, saying it raises concerns about "impermissible forum shopping."