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Commentary

The Secretary of State's Complaint Against the Cuyahoga County Board of Elections

On Monday, March 19, 2007, those who pay attention to such things were startled by the news that on the previous evening, Ohio's new Secretary of State Jennifer Brunner had placed a call to each of the four members of the bipartisan Cuyahoga County Board of Elections asking them to resign by the end of the day Wednesday. The Secretary stated that her actions were necessary to restore voter confidence and to improve elections in the county, which has been plagued by a series of problems (several studies are linked here) during the past several elections. On Thursday afternoon, March 22, following the resignations of the two Democrats on the Board, the Secretary filed a complaint against the remaining two members, who are Republicans. A hearing is scheduled for Monday, April 2, at 9:00 am in Cuyahoga County and will be presided over by William Owen, First Assistant Prosecuting Attorney in Delaware County, on the Secretary's behalf.

The Ohio Revised Code gives the Secretary of State considerable power over county boards of elections. The Secretary, in consultation with local party committees, appoints the members of each board, made up of two Republicans and two Democrats who each serve four year terms. ORC 3501.06. The Secretary of State "shall appoint" any qualified elector recommended by the nominee's county executive committee unless the Secretary "has reason to believe that the elector would not be a competent member of such board." ORC 3501.07. The Revised Code additionally permits the Secretary of State to "summarily remove or suspend any member of a board of elections ... for neglect of duty, malfeasance, misfeasance, or nonfeasance in office, for any willful violation of Title XXXV of the Revised Code [Elections], or for any other good and sufficient cause." ORC 3501.16.

The Complaint lays out five main charges, the first four of which are labeled "Misfeasance and Nonfeasance," and the last labeled as "Good and Sufficient Cause for Removal":

Count 1: "Failure to Adopt Adequate Procedures for Election Recounts Resulting in the Felony Convictions of Two Board Members" (who were convicted and sentenced for negligent misconduct and failure to perform their duties related to a recount in the 2004 presidential election);

Count 2: "Failure to Manage Competently the Board’s Financial Affairs" (including underestimating financial needs and failing to properly administer some federal Help America Vote Act funds);

Count 3: "Failure to Ensure the Efficient Administration of Elections in 2004, 2005 and 2006" (including issues with ballot security and storage, poll book reconciliation, proof reading of ballots, poll worker assignment and training, and registration list management);

Count 4: "Failure to Ensure An Acceptable Level of Performance of Voting Equipment" (including failure to adequately test optical scan machines, which resulted in an expensive hand count of absentee ballots that delayed reporting of results in the May 2006 primary);

Count 5: "Administration of Elections in Cuyahoga County Has Resulted in a Lack of Public Confidence in the Integrity of the Election Process in Cuyahoga County."

The charges contained in the complaint raise questions about who is best placed to oversee the functioning of those various layers that constitute Ohio's election administration system. Each county board of elections is to "[m]ake and issue rules and instructions, not inconsistent with law or the rules, directives or advisories issued by the secretary of state, as it considers necessary for the guidance of election officers and voters; ..." ORC 3501.11.

The "laws" with which the boards of elections’ rules must comply include constitutional, statutory, and case-made law at the federal and state levels, rules found in the Ohio Administrative Code, and Ohio Attorney General opinions. Additionally, the Secretary of State issues "directives and advisories to members of the boards as to the proper methods of conducting elections; [and p]repare[s] rules and instructions for the conduct of elections;" as well as provides the boards indexed copies of elections laws. ORC 3501.05. The boards of elections must then convey all of those rules and instructions to precinct level officers, who then guide individual poll workers as to the proper application of all of these layered requirements.

The burden for officials at each of these levels is to provide maximum clarity balanced with the proper amount of discretion left to local actors. Too much discretion leaves the state open to Bush v. Gore-type challenges based on disparate standards resulting in differing treatment of voters. Too little discretion risks election outcomes that may not reflect voter intent.

Clarity requires delineation of the entity responsible for oversight of the management of each step, and delineation not only of the consequences for failure to follow the rules, but also for failure to properly exercise those oversight roles. When the law is clear and a board of elections fails to follow it, certainly the blame is properly placed at the board's feet. However, when the law is unclear or is in flux, as was the case in the final hours of the 2004 presidential election regarding challengers and their access to voters, or regarding identification requirements leading up to the 2006 elections, who should be held responsible? And more importantly, which entity has the authority to impose the required clarity? Lawmakers? The courts? The Secretary of State? Precinct officials?

When assessing the adequacy of Ohio's current system, it may be useful to look at the complaint levied against the two remaining members of the Cuyahoga County Board of Elections and ask whether any of these charges could be levied against members of other local boards. A "yes" answer does not take away from the seriousness of the situation in Cuyahoga County, but rather should lead stakeholders at all levels to take stock of what changes need to be made on a systemic basis before the critical presidential election period of 2008. There is still time.

Terri Enns has been part of the Election Law @ Moritz team since the beginning of the project. Prior to coming to Moritz to teach in the Legislation Clinic, Ms. Enns served as Legal Counsel to the Ohio Senate Minority Caucus, where she regularly delved into Ohio's statutory oversight of campaigns and elections, working with election law both as it was being created and as it was applied. Enns has provided input for a variety of panels focused on election issues, including Campaigning with Character for the Bowhay Institute for Legislative Leadership Development; Current Controversies in Election Law for a panel at Marshall University, and Don't be Disenfranchised: Know Your Voter Rights and Election Law at the Feminist Majority Foundation's Get Out Her Vote 2008: Ohio Summit. View Complete Profile

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