Dan Tokaji's Blog
Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Saturday, December 4
 
Federal Judge Denies Motions to Stop and Start Ohio Recount
You read that right. U.S. District Judge Edmund Sargus yesterday denied a request by the Delaware County Board of Elections' request to enjoin a recount, sought by the Green and Libertarian parties' presidential candidates. But Judge Sargus also denied a motion by these candidates that the recount be ordered to start immediately. The A.P. has this report. Recount supporters plan to file their formal request on the recount as soon as possible after Secretary of State Blackwell certifies the election, probably Monday.

There's a structural defect in Ohio election laws that I've noted here. The problem is that they don't provide a means for the recount and contest to be complete by the "safe harbor" day, by which controversies regarding electors must be resolved to be assured that the state's chosen electors will be the ones whose votes are considered when Congress meets to count the electoral votes. This year, the "safe harbor" date is December 6. In fact, Ohio's recount and contest almost certainly won't be completed by December 13, when the Electoral College meets in each of the state's capitals.

My take: Though I've not yet seen the order, it sounds like Judge Sargus acted properly in denying both motions. Delaware County shouldn't be allowed to allowed to disregard state law just because it will be expensive for it to comply; by the same token, a recount probably isn't "ripe" until Blackwell certifies the vote. But whether or not the recount actually happens this year is much less important than that our laws be amended to make sure that recounts and contests are completed before the Electoral College meets.

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Moritz College of Law The Ohio State University