Ohio AG Seeks to Sanction Contest Attorneys
The office of Ohio Attorney General Jim Petro has filed a motion with the state supreme court to sanction four attorneys who filed a contest petition challenging the results of the 2004 presidential election. The AP has this report and the Cleveland Plain-Dealer this one. The AG's sanctions motion contends that the contest petition, filed on behalf of 37 voters by attorneys Cliff Arnebeck, Robert Fitrakis, Susan Truitt and Peter Peckarsky, was "meritless." The AG also accuses the contesters of having partisan motives. Arnebeck responds that the AG's sanctions motion is "frivolous" and accuses Secretary of State Blackwell of "stonewalling."

My take: I've noted my skepticism of the claims made in the contest petition from the time it was filed (see here). But the true outrage here isn't the contest petition. Rather, it is the AG's office abusing its authority by seeking sanctions. While the AG may disagree with the petition's claims that the flaws in Ohio's election were enough to swing the election -- as I do -- his disagreement doesn't remotely justify sanctions against the attorneys who filed that petition. That's particularly true, given the paucity of case authority on what's required to sustain an election contest. The uncertain state of the law in this area makes the AG's assertion that the contest petition was sanctionable even more tenuous.

Particularly galling is the AG's office accusation that the contest was filed for "partisan political purposes." Any election contest is likely to be driven by partisan motivations of some sort -- most often the belief that your party's candidate really won. Moreover, the accusation of partisanship seems to rest on the very same sort of "conjecture" that the AG's office sanctimoniously purports to condemn. And does anyone seriously believe that the AG is acting on nonpartisan motives in seeking sanctions?

Let's hope that the Ohio Supreme Court sees fit to reject the AG's motion outright. In my view, there are strong First Amendment interests at stake here, including the right to petition the government for redress of grievances. Put simply, sanctioning the attorneys would have a chilling effect on future contest petitions. This may be just what the AG and his client Secretary of State Blackwell are hoping for.

I think the contestors were wrong to assert that Kerry would have won the election if not for the problems -- and they were serious -- that occurred in Ohio before, on, and after November 2, 2004. But those citizens had a right to make that claim without being subject to retaliation by the powers that be in state government.
- posted by Dan Tokaji @ 10:08 PM