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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
Tuesday, August 30
State Responds to Ohio Voting Complaint
On July 28, the League of Women Voters of Ohio and 15 individual voters filed this complaint in federal district court in Toledo. The complaint challenges "massive disenfranchisement and unreasonable dilution of the vote" arising from the mismanagement of the state's voting system. Yesterday, Ohio Secretary of State Ken Blackwell and Governor Bob Taft filed a motion to dismiss, which I've posted here.

Since my initial post on the complaint, I've had a chance to take a closer look at the League's complaint. I've also read Blackwell and Taft's motion to dismiss, filed by the office of state Attorney General Jim Petro. Here are some preliminary thoughts.

The complaint filed by the League does an exceptionally thorough job of describing an election system in disarray. It describes a litany of defects, from registration problems to the mishandling of provisional ballots to the failure to provide enough voting machines to the failure to accommodate people with disabilities. The complaint also tells the story of each of the named plaintiffs, all of whom have experienced significant difficulties in exercising their right to vote. It's hard to come away from the whole complaint believing that these individual stories are isolated incidents, rather than a pattern of what can most generously be described as massive mismanagement.

The strategy taken by Blackwell and Taft, in a nutshell, is to say that none of this is their fault. Defendants begin by asserting that the "Ohio election system once again proved itself to be fair and efficient." For those who have been paying close attention to the state's election troubles, this can only elicit a chuckle. Although I am not among those who believe that the 2004 presidential election was "stolen," it's very clear that the system did not function very fairly or efficiently -- and that, had the margin been a quarter or even half of what it was, an extended post-election fight would have been very likely. In any event, such disagreements with the facts alleged in a complaint don't justify a motion to dismiss it. As any first-year civil procedure student knows, the court is required to assume that the allegations in the complaint are true, on a motion to dismiss for failure to state a claim.

Most of Blackwell and Taft's motion is a sustained attempt to shift responsibility for the state's election problems to county election officials. This response, however, fundamentally misconceives the nature of the lawsuit. At the root of Plaintiffs' complaint is the idea that, without much better oversight of the elections process than state officials have provided to date, the voting rights violations they have suffered are inevitable and sure to continue. Put another way, the injuries that the individual voters have suffered are part of a systemic problem, a pattern and practice that can only be redressed through broad-based injunctive relief.

The fact that Defendants (or their attorneys) just don't seem to get it is most clearly evident in the response they provide to the problems experienced by each of the individual plaintiffs. To Darla Stenson, who was denied the vote because her name was omitted from the voting list, the Defendants' response is that the county board of elections has responsibility for voting lists. And to Dorothy Stewart, who's unable to stand for long periods of time due to arthritis and thus couldn't vote when she arrived at the polls to find a long line there, the Defendants say it's the counties' responsibility to accommodate disabled voters. Defendants' motion goes on like this, but you get the idea. Its long on finger-pointing -- namely, on asserting that it's all the counties' fault -- but awfully short on legal authority in support of their repeated assertion that the buck doesn't stop with them.

Such misdirection may turn out to be a winning strategy for Defendants. But in a sense, it vindicates the argument that the League of Women Voters is making: namely, that Defendants are shirking their responsibility of ensuring an adequate and equal voting system for all Ohio voters. As long as state officials continue to deny that it's their problem, the voting rights violations detailed in the League's complaint are likely to continue.

The "no mea culpa" from Secretary of State Blackwell is especially difficult to swallow -- he is after all the state's chief election official. An interesting twist on this case is that Blackwell will be running for Governor in 2006 with his lawyer (A.G. Petro) as his main opponent. It makes one wonder how much of the Defendants' motion comes from Blackwell's office and how much from Petro's. My guess is that it's mostly the handiwork of the A.G.'s office, but that's only a guess.

In any event, the big questions are 1) whether the court will ultimately agree that the Secretary of State and Governor bear responsibility under federal law for the litany of voting inequities that the League describes in its complaint, and 2) whether the court will be willing to issue the type of sweeping relief that would be required to repair these inequities. Persuading a court to order such system-wide relief -- even in the face of the pattern of civil rights violations that Plaintiffs allege -- is quite a tall order these days, given the Rehnquist Court's general hostility toward institutional reform litigation. But the Defendants' response actually helps make the case that such relief will be needed, if we are to see genuine improvements in Ohio's election system.

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Moritz College of Law The Ohio State University