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
Wednesday, February 1
Ohio's Election Bill Signed Into Law
Governor Bob Taft has signed Sub H.B. 3, a massive bill overhauling the state's election system. The Columbus Dispatch has this report, and the AP this one. The state's house and senate approved the bill yesterday largely along party lines, with Republicans supporting it and Democrats opposing it.

Good government and civil rights groups such as NAACP, Common Cause, and the League of Women Voters also opposed the bill because it imposes new barriers to voting such as an identification requirement (contained in section 3505.18 of the new bill). Though not as onerous as ID laws recently enacted in Georgia and Indiana, Ohio's new identification law will undoubtedly prove problematic some voters -- especially those without utility bills or other documents showing their curent address and their name -- and a headache for poll workers.

A provision that has attracted less attention, but may also prove problematic, eliminates state-law contests of federal elections -- including for President, U.S. Senate, and U.S. House (3515.08). A losing candidate for these offices thus may no longer challenge the election under the contest provisions available to candidates state and local office. The new law instead provides that contests in federal races "shall be conducted in accordance with the applicable provisions of federal law." The trouble is, there aren't any federal law contest provisions, at least not any that allow for a judicial remedy.

To take an example of how this might come up, suppose that a candidate who narrowly loses a congressional race alleges that ballot-stuffing in her opponent's favor swung the election. Let's further suppose that the candidate is able to come up with affidavits from poll workers who witnessed the ballot stuffing, or even from those who did the stuffing admitting to their malfeasance. What recourse would the "losing" candidate have? She could still request a recount, but that won't do any good, since it will simply result in the recounting of the fraudulent ballots along with the valid ones. If the wrongdoing rises to the level of a federal constitutional violation -- say a denial of the fundamental right to vote or of equal protection -- then she might be able to bring a federal suit for violation of federal rights under color of state law (for you lawyers out there, that's a section 1983 suit). But most incidents of simple election fraud probably wouldn't rise to the level of a constitutional violation.

It thus appears unlikely that the losing candidate would have any judicial recourse. She could try taking her case to the U.S. House, which is ultimately the "Judge of the Elections, Returns, and Qualifications of it own Members" under Article I, Section 5 of the Constitution. But it's not clear what, if anything, the House would do -- and at any rate, a partisan political body is hardly a neutral forum for the resolution of such claims, and is not well-suited to hear and evaluate the relevant evidence in an election contest. Moreover, if the alleged fraud occurred in a federal primary election, it doesn't seem that there's anything the House could do. In effect, there would be no "jurisdiction" in the House over a primary election dispute. (Credit goes to my colleague Steve Huefner for noticing this.)

This is just one of the many legal issues that are likely to arise with respect to Ohio's newly passed election law in coming months and years. Though it may not be good for local election officials, poll workers, and voters, the new law will likely be a boon for lawyers and law professors. For better or for worse, and mostly for worse I fear, election law in Ohio continues to be a growth industry.

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Moritz College of Law The Ohio State University