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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

Judge Adams' Order in Summit County Parallels Judge Dlott's Ruling in Spencer, But Is Unclear in One Respect

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November 1, 2004

Judge Adams, like Judge Dlott, clearly rules that party-designated challengers may not challenge voter eligibility at polling places tomorrow. This is evident from the order's unequivocal assertion: "The public interest is best served if the Court prohibits Defendants from implementing the portions of § 3505.20 that permit challenges by appointed challengers" (page 14). What remains unclear, however, is whether Judge Adams's order prohibits political parties to send representatives (denominated as "challengers") to polling places for other purposes, including the observation of the voting process. His decree – that "persons appointed as challengers may not be present at the polling place for the sole purpose of challenging the qualifications of other voters" (page 15) – would seem to permit their presence, so long as they do not engage in any challenges.

Judge Dlott, by contrast, apparently barred the presence of such party-designated challengers altogether. Her ruling prohibits state and local officials "from allowing any challengers other than election judges and other electors into the polling places throughout the state of Ohio on Election Day" (emphasis added). Because her ruling is broader than Judge Adams's in this respect, state and local officials must comply with it as long as it remains in effect. Compliance with Judge Dlott's order would not be inconsistent with compliance with Judge Adams's: officials can satisfy their duties to both federal rulings by following the terms of Judge Dlott's. (Judge Dlott also made clear that her ruling extended throughout the entire state, while Judge Adams's order, on page 5, noted that it applies statewide except for Hamilton County.)

Apart from this question concerning the scope of their respective rulings, the reasoning of the two federal judges is remarkably similar. Like Judge Dlott, Judge Adams relies principally on Anderson v. Celebrezze, 460 U.S. 780 (1983), the U.S. Supreme Court precedent that requires a balance of the competing interests at stake in the electoral process. Like Judge Dlott, Judge Adams finds that to permit polling place challenges by party-designated representatives this year would severely threaten the rights of voters, whereas the State of Ohio is able to protect against voter fraud by having election judges (i.e., poll workers) challenge voters.

In Judge Adams' words, "the presence the [party-appointed] challenges serves the same interest as that of the election judges, except that the presence of the challengers may pose an undue burden on voters an election officials" (page 11). He adds: "There is little, if no, evidence that establishes the need for such challengers, give that the election officials can protect the State's interest." This means, as Judge Adams concludes, that the constitutional balance must tip in favor of protecting the right of voters.