Posted: September 25, 2008

Analysis: Ohio "Check-Box" Lawsuit

On September 17, Republicans sued Ohio Secretary of State Jennifer Brunner [See EL@M case page] after she issued a memorandum to local boards of election instructing them to reject allegedly flawed absentee ballot applications that had been designed, printed, and issued to voters by the McCain-Palin campaign. According to Brunner, the applications were flawed because voters failed to place a check mark in a square that was printed beside the following statement on the application form: "I am a qualified elector and would like to receive an Absentee Ballot for the November 4, 2008 General Election." Brunner argued that the applications of voters who had failed to place a check in this square could not be honored because Ohio law requires applicants to indicate on the application form that they are qualified electors. Two days later, Republicans sued Brunner again, in an action that appears, thus far, substantially identical to the first. 

Republicans point out that there is no law that explicitly says that a check box on a ballot application has to be checked to make the application effective (however, it is worth noting that there also is no law that explicitly says that failure to check such a box will not make such an application ineffective). Republicans also point out in their complaint that Brunner has ordered local boards of election to overlook the failure of voters to place a check in boxes that appear on forms similar in layout to Brunner's recommended absentee ballot application form.

That is true, but it is a different form, and is susceptible to being interpreted differently. Particularly, the check boxes on Brunner’s form do not appear next to the qualified voter statement, but instead appear next to blank lines where voters are supposed to fill in their social security numbers or other identification information. If the voter fills in these numbers, the voter has complied with the relevant statute by providing the required information. At that point, checking or not checking the square next to these statements does not really seem to add or subtract anything. In contrast, there are no “blanks” for the voter to fill in information on the disputed portion of the McCain form, only a square next to the qualified voter statement. Voters who check the square have clearly indicated they are qualified, but it is less clear with voters who fail to check the box and nevertheless send in the form.

The basic standard for evaluating these forms is simple enough: To be effective, absentee ballot applications must contain a "statement that the person requesting the ballots is a qualified elector.” R.C. 3509.03. The issue is whether the allegedly flawed applications contain such a statement. On the one hand, the forms do have printed on them the words "I am a qualified elector..." and the signature at the bottom of the form may be enough to say the voter is ratifying that statement. On the other hand, there is a square next to those words. Some voters placed a mark in that square, and others did not. Is the emptiness in the square enough to take the words "I am a qualified elector" and change their meaning so that they now mean the voter is not a qualified elector?

Sometimes, when faced with these types of ambiguities, courts will start to look closer at the equities. If this happens, the Republicans may come out ahead of Brunner, because no one is seriously contending that the voters who failed to check the rectangles are not qualified. In fact, voters are supposed to be notified of the deficiency and provided an opportunity to cure it. R.C. 3509.04. Furthermore, by filling out and mailing in application forms that had printed on them the words "I am a qualified elector," most voters probably intended to communicate that they were qualified. At the very least, they certainly did not intend to indicate that they were not qualified, because what then would be the point of filling out the form?

There are other issues in the case, including the question of whether mandamus relief is even available, an area in which the Court has ruled both ways in elections cases as of late (see State ex rel. Summit Cty. Republican Party Executive v. Brunner, 118 Ohio St.3d 515 (Ohio, 2008); State ex. rel Mackey v. Blackwell, 106 Ohio St.3d 261 (Ohio, 2005)). However, people who get too caught up in the "legal analysis" of a case like this run the risk of missing the significance of the fact that, to a lot of people, Brunner's order is going to seem unfair. If at least four of those people happen to be sitting on the Ohio Supreme Court, it significantly reduces Brunner's chances for victory.

[Note: The first suit filed by Republicans over this issue, as discussd above, was State ex rel. Myles v. Brunner, filed on 9/17/08.  A second suit, State of Ohio ex rel. Doucher v. Brunner, was filed on 9/19/08 and involves the same issue]