More Thoughts on the Ohio Sanction Motion
I noted here the Ohio Attorney General's motion to sanction the attorneys who filed a petition contesting the November 2004 presidential election. Here are a few more thoughts after reading the AG's brief in support of sanctions:

1. To sustain a contest in Ohio, one must show 1) one or more irregularities 2) that affected enough votes to change or make uncertain the results. The contest petition filed on behalf of the contestors raised a number of serious irregularities. But in my view, it did not identify evidence sufficient to show that the result of the election would have been different but for the irregularities.

2. Notwithstanding that, I don't think that the Ohio AG's motion for sanctions is justified. It's not accurate to assert, as does the AG, that: "Instead of evidence, Contestors offered only theory, conjecture, hypothesis and invective." To be sure, there was a lot of all those things in the petition, but there was also evidence. Most of the factual allegations set forth in the petition were true, including, from what I can tell, the allegation of a discrepancy between early exit poll results and the final reported number. At any rate, the AG doesn't really attempt to disprove those allegations. The disagreement lies in the inference that it's reasonable to draw from the alleged facts. As I've stated numerous times, I don't think that evidence supports the inference that the result might have been different but for the irregularities; but I don't think that the contest petition was so frivolous as to warrant sanctions. I'm also quite worried about the chilling effect on future contests from an award of sanctions, particularly given the inherent indeterminacy and subjectivity about judgments whether the result would have been different but for certain irregularities.

3. This point is mainly for the lawyers. It appears to me as though it's questionable whether sanctions can be awarded at all in a contest action, as the AG maintains. The closest case on this issue appears to be In re. Election of November 6, 1990, 62 Ohio St. 3d 1, in which the Ohio Supreme Court held that costs under rule 54 (similar to Federal Rule of Civil Procedurre 54) aren't available because the "procedures prescribed for elections contests are specific and exclusive." In this case, the AG seeks sanctions under rule 11 (similar to FRCP 11). It seems to me that the same rationale would apply and therefore that rule 11 can't be used to award sanctions in a contest case, but this is arguable.

4. While there's not a whole lot of case law on contests in Ohio, the State Supreme Court has said that "clear and convincing" evidence must be shown to sustain a contest petition. Contestors didn't, in my opinion, have clear and convincing evidence at the time of their contest petition. Still, it doesn't seem to me that that should be sanctionable, particularly given that they've said all along that the hoped to obtain additional information to support their claims -- and presumably to meet this high burden -- through discovery. They never got this discovery of course. While it's hard to imagine any discovery they could have received that would have sufficed in this election, it's also true that the state and counties didn't go out of their way to make information available. In a closer election, where the kind of irregularities experienced in Ohio might be sufficient to call the result into question, such stonewalling could make it impossible to resolve election contests promptly.

Bottom line: The evidence didn't, in my view, support the contest petition. But it wasn't sanctionable. It's puzzling to me why the AG would want to draw out the post-election controversy by filing such a motion, rather than trying to take the moral high ground and let the matter die quietly. The only apparent reason seems to be to make an example of the contestors' lawyers. A more significant danger is the chilling effect on future contestors, in cases where it might really matter.

- posted by Dan Tokaji @ 11:13 PM