OSU Navigation Bar

Election Law @ Moritz Home Page

Election Law @ Moritz

Election Law @ Moritz

Information & Analysis

September, 2008

Below are postings from September, 2008. (See Archives | Recent Headlines)

5-Day Window Now in 6th Circuit

Sep. 30 - Both sides in Ohio Republican Party v. Brunner have appealed Judge Smith's ruling from yesterday.  Secretary Brunner has filed a motion arguing that Judge Smith's order violated the Eleventh Amendment, was based on a misunderstanding of relevant state law, and was inappropriate given its proximity to the start of absentee voting tomorrow.   The Republican Party has responded that (1) Judge Smith's order for observers should be kept in place but (2) that the appeals court should order Brunner to insist that ballots cast during the 5-day window be kept physically separated from other ballots, so that the validity of the new registrations may be verified.  UPDATE: Secretary Brunner has filed a response and reply brief with the court.  The Ohio Republican Party has also filed a reply.

Sixth Circuit Voids Order for Observers during 5-Day Window

Sep. 30 - A 2-1 appeals panel ruled yesterday (9/30) that the Republican Party made no showing that the absence of observers violate the federal Voting Rights Act, which could be the only basis for a federal-court order.  In a separate part of its decision, the panel ruled 3-0 that a factual dispute over how the absentee ballots cast during the 5-day window would be handled during the time for verifying new registrations (the Ohio AG had specifically told the Sixth Circuit that each absentee ballot envelope is specifically checked to make sure of the registration's validity before it may be opened for counting) precluded any basis for an appellate order requiring further rules concerning the handling of these ballots.  (See the EL@M case page for Ohio Republican Party v. Brunner for more information).

Federal Judge Keeps 5-Day Window Open

Sep. 29 - Judge James S. Gwin issued a Temporary Restraining Order (TRO) today in Project Vote v. Madison County Board of Elections in the U.S. District Court for the Northern District of Ohio.  The TRO requires the Madison County Board of Elections and Ohio Secretary of State Brunner to comply with Directive 2008-36, which permits voters to simultaneously register and receive an absentee ballot for a five-day period.  However, the related cases, State ex. rel. Colvin v. Brunner and Ohio Republican Party et al v. Brunner, remain pending in the Ohio Supreme Court and the U.S. District Court for the Southern District of Ohio, respectively. [DISCLOSURE].

Ohio Supreme Court Backs 5-Day Window

Sep. 29 - The Ohio Supreme Court, in a 4-3 ruling, issued an order today in State ex. rel. Colvin v. Brunner denying the requested writ of mandamus and ruling in favor of the Secretary of State and her five-day window directive. [DISCLOSURE]

Judge Declines To Rule On 5-Day Window, Allows Party Observers In Polling Places

Sep. 29 - In Ohio Republican Party et al v. Brunner, U.S. District Court Judge George Smith issued an order declining to rule on the validity of Secretary Brunner's directive allowing a 5-day, same-day, voter window, noting that the Ohio Supreme Court upheld the Secretary's decision in that regard earlier today.  However, Judge Smith did rule that political parties could station observers in the polling places during this in-person absentee voting period that begins Tuesday.  An appeal to the U.S. Court of the Appeals for the 6th Circuit is expected.

Republicans Ask Federal Judge To Close Five-Day Window

Sep. 26 - The Ohio Republican Party today (9/26) filed suit [see EL@M case page] in the U.S. District Court for the Southern District of Ohio over Ohio Secretary of State Jennifer Brunner's directive that would allow voters to simultaneously register and receive an absentee ballot during a five-day period of time (30-35 days before the election), which would begin on Tuesday (9/30).  The Republicans have also filed a Motion for a Temporary Restraining Order.  A hearing on that motion has been set for Monday (9/29).  This is the third lawsuit filed involving the "five-day window."  The first suit, State ex. rel. Colvin v. Brunner, was a madamus action filed with the Ohio Supreme Court on 9/12/08.  The second suit, Project Vote v. Madison County Board of Elections, was filed with the U.S. District Court for the Northern District of Ohio.  [DISCLOSURE]

Analysis: Ohio 5-Day Window Suit

Sep. 25 - 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. [DISCLOSURE]

Analysis: Ohio "Check-Box" Lawsuit

Sep. 25 - 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.

Amicus Brief filed in Ohio 5-Day Window Suit

Sep. 24 - An amicus curiae brief was filed today with the Ohio Supreme Court by 1Matters, the ACLU, and others, in support of the Ohio Secretary of State in State ex rel. Colvin v. Brunner.  The brief supports the position of Secretary of State Jennifer Brunner that Ohio law provides for a five-day window (30-35 days before the election) within which qualified voters may simultaneously register and receive an absentee ballot.  DISCLOSURE: EL@M Associate Director Daniel Tokaji is one of the attorneys who filed the brief on behalf of the amicus curiae.

McCain Likely to Win Ballot Request Fight

Sep. 22 - On September 17, Republicans sued Ohio Secretary of State Jennifer Brunner after she issued a memo 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 (Ohio law does not require such applications to be in any particular form, as long as they contain certain enumerated statements).  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."  Because it is pretty clear from the form that voters are supposed to check the square, Brunner has a point.  Nevertheless, the equities weigh so heavily against her that it is difficult to see how she could win this case.

Miss. Gov Agrees to Move Senate Race Up on Ballot

Sep. 19 - Mississippi Governor Haley Barbour has agreed to move the Senate special election race to the top of the Mississippi general election ballot.  This agreement has come in the wake of the Mississippi Supreme Court's decision yesterday (9/18) that determined that placement of the race at the bottom of the ballot was illegal.  (See EL@M's coverage of this case here). 

Advancement Project and ACLU Sue Over Unlawful Voter Purging in Michigan

Sep. 19 - The Advancement Project and the ACLU are suing Michigan Secretary of State Terri Lynn Land, Michigan Bureau of Elections Director Christopher M. Thomas, and Ypsilanti Clerk Frances McMullen over allegedly unlawful voter registration purge programs.  The programs in question automatically remove voters who obtain a driver's license in another state and whose voter identification cards are returned by the post office as undeliverable.  Plaintiffs claim these programs do not provide adequate notice to voters and violate the NVRA.  Plaintiffs also allege young voters and minority voters wil be disproportionately affected by these practices.  Election Law @ Moritz will soon begin tracking the case in its Major Pending Cases database. 

2 voters sue Ohio elections chief

Sep. 18 - Two Ohio voters have filed suit against Ohio Secretary of State Jennifer Brunner.  Plaintiffs are two of the voters who received absentee ballot applications from the McCain campaign that contained an extraneous checkbox next to a statement that the voter is eligibile to vote.  Brunner has told counties to reject such applications if the box is not checked by the voter claiming that state law requires such a box to be checked.  Republicans are displeased with her decision and have rejected as inadequate her offer to notify voters and allow them to print an online form and return it with the necessary correction.  Approximately one million of these absentee ballot applications were mailed in Ohio.  Election Law @ Mortiz is monitoring the case here

Ohio SoS Requires Hearing for Challenges

Sep. 15 - Last week, Jennifer Brunner issued a directive ordering local Boards of Election to require an in-person hearing before cancelling the registration of any voter in response to an individual's challenge to their voter registration (see here).  Republicans are claiming that the directive essentially rewrites Ohio law.  The directive also states that Boards may not cancel the registration of a voter merely because a postcard attempting to confirm the voter's address was returned by the post office undeliverable.

Put MS Senate Race at Top of Ballot, Judge Orders

Sep. 15 - A Mississippi state trial court judge has ordered that the candidates seeking to fill an empty Senate seat be placed at the top of the ballot, not the bottom (see here).  Although this is generally required for national offices, officials argued that they were entitled to place the race at the bottom, because it was a special election.

Oral Argument in LWV v. Blackwell

Sep. 14 - Oral argument in League of Women Voters v. Blackwell, a major case attacking Ohio's entire election system as fundamentally flawed, will be held before the federal Sixth Circuit Court of Appeals on October 21, 2008.

Lawsuit to Close Ohio Window Filed

Sep. 12 - A petition has been filed in the Ohio Supreme Court, challenging Secretary of State Jennifer Brunner's directive (2008-63) interpreting state law to give voters a five-day window (30-35 days before the election) within which they may simultaneously register and receive an absentee ballot. The Petition for Writ of Mandamus in State of Ohio ex re. Colvin v. Brunner may be found here.

Absentee Ballots Fouled Up

Sep. 11 - Hundreds, if not thousands, of Ohioans failed to properly fill out their absentee ballot applications when they forgot to check a box on the form indicating they are qualified and eligible.  Election officials will notify voters of their error, and give the voters the opportunity to make another request.

HAVA Matching Lawsuit in WI

Sep. 11 - The Wisconsin Attorney General has sued the state's chief election authority (the Government Accountability Board) to compel the GAB to attempt to verify the personal information contained on incoming voter registration applications against information in outside databases (see our coverage here).  The GAB is currently attempting to verify in this way, but has not done so for applications received prior to August 6.

MS Ballot Lawsuit

Sep. 11 - The Mississippi Supreme Court has stopped a lower court from prohibiting the distribution of a controversial sample ballot.  The ballot lists an important US Senate race at the bottom, although Senate races generally are required to be at the top.  Election officials interpreted the law to allow them to place this particular Senate race at the bottom of the ballot, because it is a special election to fill an open seat.

ACLU Sues Over Voter Registration in Rhode Island

Sep. 11 - Rhode Island Affiliate of the American Civil Liberties Union filed a lawsuit yesterday (9/11) against the state Board of Elections (see our coverage here).  Rhode Island is one of the few states in the country that allows for same day voter registration.  R.I. Gen. Laws § 17-1-3 permits people who have not registered to vote to appear at their city or town hall and cast a vote in a presidential election.  The Rhode Island Board of Elections has adopted a new administrative regulation that allows towns and cities to designate a different location for this same day voter registration procedure if "voting in a city or town hall has become impracticable due to inadequacy of the available facilities or other concerns."  The issue in the lawsuit is whether this newly adopted administrative regulation impermissibly conflicts with the Rhode Island statutory provisions.

EL@M Publishes Major New Research

Sep. 8 - Today EL@M publishes extensive new research concerning the legal issues surrounding the 2008 presidential election.  The project features an interactive web chart and database that allows the user to perform side-by-side comparisons of 44 critical legal questions across 17 key states. The project also allows the user to access the same information in a more visual way be viewing 44 interactive US maps that are color coded to faciliate analysis and discussion. Finally, the project includes an interactive map that allows the user to see our analysis of the states most likely to experience election-related litigation prior to November. All of these maps and charts allow the user to see more detailed factual and legal research, including citations, by clicking through to the heart of our database. The executive summary of the project may be found here.


Daniel P. Tokaji

What's the Matter with Kobach?

Daniel P. Tokaji

By "Kobach," I mean the Kobach v. EAC case in which the Tenth Circuit heard oral argument Monday – rather than its lead plaintiff, Kansas’ controversial Secretary of State Kris Kobach, who argued the position of his state and the State of Arizona. This post discusses what’s at issue in the case, where the district court went wrong, and what the Tenth Circuit should do.

more commentary...

In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

more EL@M in the news...

Info & Analysis

Judge Denies Motion for Preliminary Injunction in NC Case

U.S. District Judge Thomas D. Schroeder denied the motion for a preliminary injunction sought by the plaintiffs in a case challenging a new North Carolina voting law as violating the Voting Rights Act and the federal Constitution. Judge Schroeder also denied the defendants' motion for judgment on the pleadings. The case is North Carolina NAACP v. McCrory.

more info & analysis...