Posted: September 25, 2008

Analysis: Ohio 5-Day Window Suit

In State ex rel. Colvin v. Brunner, Republican voters are challenging Secretary of State Brunner’s directive instructing counties to allow voters to both register and vote in one visit to an early vote center. She issued the directive to clarify procedures for the overlap period between the end of voter registration and the beginning of early voting.

The Republicans’ argument: The Republicans’ brief states that only “qualified electors” may apply for absentee (early) ballots and ballots may only be issued to “qualified electors”. They argue that to be a qualified elector, one must have been registered to vote for 30 days prior to applying for a ballot. (In contrast, the Secretary interprets the law to require that voters be registered to vote 30 days prior to election day. See below.) The Republicans seek a writ of mandamus forcing the Secretary to issue a directive to the counties instructing them not to conduct same day registration and voting. They contend that some counties will issue ballots to unqualified voters and some counties will not, resulting in unequal treatment of voters and a violation of equal protection. The Republicans cite Bush v. Gore for the proposition that lawful voters may be disenfranchised when unlawful ballots are cast.

Secretary Brunner’s position: Secretary Brunner has not yet answered the Republican brief. However, she said in a recent news article that federal law considers absentee ballots to have been cast on election day, not on the day they were filled out. She may have been referring to federal law governing the absentee ballots of overseas and military voters, but that law does not apply to regular absentee ballots. She also recently claimed in a news release that same day registration and voting have existed since 1981 under secretaries of state from both parties with no complaints from either side. She further claims that Republicans are now suing her office over the practice in order to create a political distraction.

Possible legal arguments from Secretary Brunner: It is difficult to speculate what all of the Secretary’s legal arguments will be before her office files its response brief. She might claim the plaintiffs lack standing. The plaintiffs allege that their lawful votes may be diluted by the casting of unlawful votes, a speculative harm since the plaintiffs have not attempted to prove that unlawful votes will be cast or counted. The Secretary, in an answer to the plaintiffs’ brief, claimed that the issuance of a directive is a discretionary act that cannot be reviewed in mandamus. For a writ of mandamus to be issued, the plaintiffs must show that they have a clear legal right to have the Secretary issue a new directive reversing the existing one, that the official has a clear duty to issue this new contrary directive, and that the plaintiffs have no remedy at law. Secretary Brunner could argue that Republicans do not need the remedy they seek to escape the feared harm, because safeguards are in place by statute and because the directive requires those ballots to be placed in envelopes that make the ballots individually identifiable and retrievable if problems arise with registrations. Regarding the merits of the case, Secretary Brunner has briefly expressed her views but may put forth a more thorough explanation of why her interpretation of Ohio law is correct.

Relevant law: The statutes order BOEs to deliver absentee ballots to individuals who have applied for them "if the director finds that the applicant is a qualified elector." R.C. 3509.04. Ohio statute provides the following with respect to qualifications for voting:

Every citizen of the United States who is of the age of eighteen years or over and who has been a resident of the state thirty days immediately preceding the election at which the citizen offers to vote, is a resident of the county and precinct in which the citizen offers to vote, and has been registered to vote for thirty days, has the qualifications of an elector and may vote at all elections in the precinct in which the citizen resides.

R.C. 3503.01(A)(emphasis added). Qualified elector is defined in R.C. 3501.01(N) as “a person having the qualifications provided by law to be entitled to vote.” Reasonable arguments can be made interpreting this statute to mean what each side claims. Some would argue the plain language of the statute does appear to weigh somewhat in Republicans' favor. However, Secretary Brunner may argue, for example, that the statute is not to be read hyper-technically because it refers to voting at elections in the voter’s precinct, something which does not literally take place when a voter exercises the early/absentee voting option.

What this lawsuit could mean for absentee voting: Every newly registered early and absentee voter in Ohio -- not just those who apply to vote an in-person absentee ballot-- could be affected if the court decides that the Republicans’ interpretation of the law is correct and that a voter must be registered for 30 days prior to applying for an absentee ballot. Local officials probably do not currently check all absentee voters’ records to make sure the voter has been registered for 30 days before issuing an early or absentee ballot. However, with this lawsuit, the Republicans are now seeking to make that the practice. Changing the process by which local officials process ballot applications and distribute absentee ballots this late in the election season could cause substantial confusion and disorder.

The Republicans’ brief does not state why they fear that potentially unlawful ballots will be counted before the voters’ registrations can be verified in the typical way. In fact, these ballots are sequestered and remain individually identifiable until election day, allowing them to be rejected before they are counted should a problem with the voter registration be discovered during routine processing. R.C. 3509.06. In addition to the statutory requirement that the ballots be sequestered, Secretary Brunner, in Directive 2008-91, specifically requires the counties to use optically scanned ballots and envelopes with identifying information on them. The Republicans’ brief does not address this part of the directive.

In Ohio, all newly registered voters are mailed a postcard notifying them of their voter registration. If this mailing is returned as undeliverable, boards of elections may attempt to confirm the voter’s address in other ways. Because absentee ballots should be traceable to the individuals who cast them, officials should be able to retrieve these ballots and reject them if their voter registration cannot be successfully processed. Therefore, even if the court agrees with Plaintiff's argument that the law requires registration 30 days prior to applying for an early absentee ballot, Plaintiffs would not necessarily be at any risk of harm from the counting of unlawful ballots.

A potentially problematic outcome of this lawsuit would be if the court allowed same day registration and voting to take place while they took more time to decide whether this is allowed by Ohio law. This could create a situation where voters who had already showed up to register and vote would potentially have to (or get to) vote again closer to or on election day. Problems with this outcome may be voter confusion and possible disenfranchisement as voters thinking they had already voted may not show up to cast a another vote if their initial vote is cancelled. In addition, some voters whose early votes were appropriately cast may be confused about whether they need to vote again.

Prediction: It is difficult to predict what any court will do, and this case is no exception. The all-Republican Ohio Supreme Court has issued divided decisions on cases involving Democrat Secretary Brunner’s authority in the past, so it cannot be assumed that every decision coming out of this court will go against Secretary Brunner. See State ex rel. Summit Cty. Republican Party Executive Commt. v. Brunner,118 Ohio St.3d 515, 890 N.E.2d 888, (2008); State ex rel. Lawrence Cty. Republican Party Executive Commt. v. Brunner, 119 Ohio St.3d 92, 892 N.E.2d 428 (Ohio). A plain language argument requiring registration for 30 days before the act of casting one’s ballot may be countered by the court’s unwillingness to be viewed as disenfranchising voters or by the long-standing practice of not requiring that voters be registered 30 days before the issuance of absentee ballots. Perhaps the most important thing that would guide the court is the fear that, by finding for the Republicans, the court will be creating a disruptive new standard that state and local administrators will have to scramble to implement at the expense of other important preparations. No case law could be found that was directly on point, but a 2001 suit held that the qualifications of signers of petitions must be evaluated as of the date of the petition filing and not as of the date of the act of signing, which occurs earlier. State ex rel. Oster v. Lorain Cty. Bd. of Elections, 93 Ohio St.3d 480, 756 N.E.2d 649, (2001). By analogy, this case would suggest ruling in favor of Brunner. However, it is not clear the Supreme Court would find it applicable.

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