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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Opinion and Analysis

Nader in the Ohio Supreme Court

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October 26, 2004

The Supreme Court of Ohio has denied a writ of mandamus filed on behalf of the Nader campaign that was Nader's 1 last best hope of getting on the ballot in time for the November 2nd election. Though Nader appealed on Monday to the United States Supreme Court, with only a week left until the election it is unlikely that this final appeal will be successful.

The Supreme Court of Ohio denied a writ that would have compelled the Ohio Secretary of State to order county boards of elections to update their voter registration records and then re-review the validity of petitions for the Nader candidacy in light of that update. Nader was hoping that the updated registration records would reflect the fact that at least 1,292 of the signatures previously thought invalid would be seen as, in fact, valid. That would have given Nader the requisite number of signatures to be on the presidential ballot.

But the Supreme Court of Ohio barred the writ based on laches – what that means, essentially, is that there was an unreasonable delay by the Nader campaign in bringing the action. The court wrote that the Nader camp waited fully 31 days after the state boards of election had invalidated 8,009 signatures before filing the petition for the writ on October 4th. This delay, the court felt, caused undue turmoil in many ways. First, the delay made it impossible for boards of elections to print accurate absentee ballots by the September 28th deadline. Second, it prejudiced the Ohio Secretary of State by not giving adequate time to defend against the charges of unconstitutionality. Finally, granting Nader's requested relief "so gratuitously late in the campaign season" (quoting a recent Illinois case) would endanger the probability of a smooth election in Ohio. The ruling that the writ of mandamus was barred by laches after a 31 day delay is consistent with many Ohio election-related cases that necessarily must be decided on a deadline due to a rapidly approaching election.

Since the expediency of the appeal precluded time for an oral argument it is unclear what Nader's response to the charge of the 31 day delay would be. But in a separate concurrence that refused to join in the majority's laches decision, Justice O'Donnell made the argument for him. O'Donnell stated that this writ was filed only after the Ohio Secretary of State further invalidated 2,756 other signatures that brought Nader below the 5,000 threshold. Far from waiting an intolerable length of time, the writ was filed a mere six days after that occurrence, which was what necessitated the appeal at all. Had the Ohio Secretary of State not invalidated those further signatures Nader would have easily been on the ballot and the mandamus action would not only not have been necessary but would have served to merely clog up the court system. O'Donnell concluded his separate concurrence by saying: "For a national presidential candidate to react to a Secretary of State's ruling in one state by drafting and filing a complaint in a court of law within six days is not laches – it is a remarkably timely reaction to a changing election environment."

But despite this disagreement as to whether the writ was barred by laches, the Supreme Court of Ohio also ruled that a key procedural statutory requirement was not followed. An action for a writ of mandamus like this one must be "in the name of the state on the relation of the person applying." The word "State" should have appeared in the caption for it to be a proper mandamus action; failure for this to be included, or to later be amended for inclusion, required dismissal of the mandamus action.

Notes

1. Ralph Nader was not a named party in this litigation. Rather the case was brought by Ohio residents who are members of a committee supporting the Nader/Camejo ticket. The name "Nader" is used for the sake of clarity and simplicity.