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Commentary

The Nation's Interest in Ohio's New Secretary of State

Ohio has a new Secretary of State, and that fact has potential implications for the nation as well as the state.

Jennifer Brunner has previous experience in the office she now heads and, as she has proclaimed publicly on multiple occasions, is determined not to make the mistakes of her predecessor, Ken Blackwell. Local election officials can expect much clearer, and more timely, directives from her office as well as improved lines of communication in general. Voting rights advocates will find a more receptive audience, as her policies are expected to favor making voting as accessible as possible within the legislative framework previously set by the state’s General Assembly.

Secretary Brunner is likely also to be energetic in proposing any legislative changes she deems necessary. She has already suggested innovative ways to improve the recruiting of poll workers, a pressing imperative in this state as well as others. Even if the legislature resists her specific suggestions, which include as a last resort making poll working a civic obligation akin to jury duty, she should be commended for putting the issue front and center, thereby placing squarely on the General Assembly’s shoulders the onus of developing a better way to guarantee adequate staffing of the polls in 2008. A nation that watched in agony the long lines at Ohio’s polling places in 2004 obviously has an intense interest that voting go smoothly in this state next year.

Secretary Brunner’s exercise of her authority will affect the nation in other, less obvious but perhaps even more important, ways. Because of the problems that occurred in Ohio in 2004, the League of Women Voters filed a major lawsuit against her predecessor, claiming that administration of the voting process in the state pervasively violated Equal Protection and asking the federal court to supervise top-to-bottom reform. Citing Bush v. Gore, the trial-level federal judge rejected then-Secretary Blackwell’s motion to dismiss the case. Because of its importance, the case is now pending before the Sixth Circuit Court of Appeals in advance of the scheduled trial of the League’s factual allegations, and any decision reached by Sixth Circuit would set an important legal precedent not just for Ohio and the other states within its jurisdiction (Michigan, Kentucky, and Tennessee) but nationwide, as it would be the first to consider the application of the Equal Protection principle in Bush v. Gore to the overall operation of a state’s voting system.

Secretary Brunner has publicly announced her willingness to settle the case, a fact that in itself is newsworthy and would prevent the Sixth Circuit from creating a nationally important judicial precedent. Moreover, the terms of the settlement she reaches will be nationally significant. Not only will they govern Ohio’s voting procedures in the presidential election next year, but they also will set a kind of litigation-avoidance precedent that may serve as a benchmark for voting administration practices in other states. Wherever voting administration troubles may develop in the future—as they have in Maryland, Colorado, and elsewhere—other local chapters of the League of Women Voters, or other voting rights groups, may hold up the settlement of this Ohio case, saying in essence “If you don’t voluntarily adopt the administrative standards that Ohio agreed to, we’ll sue, and so to avoid all the trouble and expense of litigation, you should agree now to what it took Ohio two years and much cost to accept.”

There is other important litigation pending against the Ohio Secretary of State’s office, including a case that specifically concerns the procedures for implementing the state’s rules regarding voter identification and provisional voting. Secretary Brunner has indicated her desire to settle all these suits, and the collective effect of all these settlements will shape the landscape of voting administration in this state as well as set a potential benchmark for practices elsewhere in the nation. Anyone interested in what rules will be in place for voting procedures in 2008 should look for further news about the likely settlements of these lawsuits.

Secretary Brunner may be successful in settling the lawsuits filed against Blackwell, but it is unclear that she will be able to avoid voting-related litigation altogether in 2008. Because of Ohio’s role as a swing state, it can be expected that candidates and their supporters will look for ways to use lawsuits as part of their overall campaign strategies in the upcoming presidential election, just as they did in 2004. The fact that Brunner is a Democrat, whereas Blackwell was a Republican, reduces the likelihood of lawsuits from Democratic quarters but increases the chances that Republicans will file some kind of suit.

Don’t be surprised, for example, if Republicans bring some kind of pre-election challenge to voting procedures in Cuyahoga County, the state’s largest county, which is heavily Democratic (favoring Kerry over Bush 2-to-1), and which has suffered particularly acute voting administration problems in both the recent and more distant past. Most readers will recall the problems that plagued the 2006 primary in Cuyahoga County as well as the recent convictions of two high-level county elections officials for rigging the recount in 2004 (although they did so solely to avoid extra work, rather than to affect the election’s outcome). But many readers may have missed that there still were significant problems with the administration of the general election in 2006, including delays in opening polling places that triggered a federal-court order to extend voting hours, as well as a Cleveland Plain Dealer report that close to 12,000 ballots were cast in the county by voters who had not properly checked in and signed the poll books. These problems may not be as severe as they were in 1972, when a federal court ordered a new primary election in several precincts where polling places failed to open on the original day of the primary. Nonetheless, depending upon what transpires in Cuyahoga County between now and November 2008, Republicans may attempt to use the county’s history of voting difficulties as the basis for a preemptive suit.

Even if no such pre-election litigation occurs, one can imagine scenarios of post-election litigation if the presidential vote in Ohio ends up even closer in 2008 than it was in 2004. In fact, because the Ohio Secretary of State is now a Democrat, whereas the Ohio Supreme Court is controlled by Republicans, there is the potential for a situation that is the mirror image of the one that occurred in Florida in 2000. Suppose, for example, that there is a problem with balloting in Cuyahoga County in the general election: just as in 2006, perhaps there will be 12,000 (or more) ballots cast without the voter’s having signed the poll book. Even assuming a lack of partisan motives on the part of any of the state’s decision-makers in this type of situation, we can imagine the Secretary of State announcing her intention to certify a narrow victory for the Democratic candidate based on vote totals that include these disputed ballots, with the Ohio Supreme Court ordering the Secretary of State to award the election to the Republican candidate based on an exclusion of these ballots from the certified result. Both the Secretary of State and the state supreme court may have good faith, plausible bases in state law for their respective positions. Nonetheless, the coincidence that each decision-maker’s interpretation of state law supports the candidate of the same party with which the decision-maker is affiliated would invite speculation whether the state is able to award its electoral votes fairly.

The chances of this situation actually happening are obviously small, but then so too were the chances of what occurred in Florida. If lightening did strike the presidential election process twice within eight years, then perhaps the U.S. Supreme Court would consider it necessary to intervene again. But maybe the specific state-law dispute between Ohio’s Secretary of State and the Ohio Supreme Court would not lend itself as readily to U.S. Supreme Court intervention as the situation in Florida. (The state supreme court’s decision might be less creative an exercise of statutory interpretation, thus avoiding the Article II problem that three Justices found in Bush v. Gore, and the particular dispute over questionable ballots in Cuyahoga County might not raise an Equal Protection issue analogous to the problem of dimpled and hanging chads in Bush v. Gore.) Or the U.S. Supreme Court simply might decide to refuse to intervene this time, either because it learned a lesson from last time (its intervention then having been vociferously condemned) or because, for whatever reason, the decision of the Ohio Supreme Court might seem less egregious and in need of review that what the Court confronted from the Florida Supreme Court in 2000. In any event, if the U.S. Supreme Court did duck this situation, then there is the prospect of Ohio sending dueling slates of Electoral College votes to Congress: one slate on behalf of the Republican candidate, by virtue of the state supreme court decree; the other, on behalf of the Democratic candidate, by virtue of the Secretary of State’s pronouncement. (In Ohio, the Governor is now Democratic, whereas the General Assembly is Republican-controlled, so presumably those two institutions would stalemate in any effort to control the state’s Electoral College votes.)

All this may seem fanciful, but if the situation did come to pass, would we really want the U.S. Congress deciding which candidate won Ohio’s electoral votes based on arcane procedures developed after the disputed election of 1876? Instead, isn’t one of the important lessons of 2000, but which has not yet led to change, is that our nation would be better served by a different set of procedures for resolving disputed presidential elections? I’m not concerned here with identifying what different procedures would be best. Rather, my point is that now, early in 2007, is the time for addressing whether we should put new procedures in place before the voting occurs next year.

Odds are that the presidential election in 2008 will go smoothly in Ohio, or at least smoothly enough so that the margin of victory exceeds the proverbial margin of litigation. But in preparing for the 2008, it is necessary to anticipate even small risks of so-called "nightmare" scenarios. Indeed, it is the steps that Ohio's new Secretary of State has begun to undertake that will help to reduce these risks even further, and Congress should similarly consider what additional steps it, too, might take along the same lines.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile

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