Posted: September 22, 2008

McCain Likely to Win Ballot Request Fight

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). Two days later, Republicans sued Brunner again, in an action that appears, thus far, substantially identical to the first. 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 forgotten 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. Because it is pretty clear from the form that voters are supposed to check the square, Brunner has a point.

For their part, Republicans in their complaints cull together various bits of the Ohio election code and claim that Brunner’s actions are contrary to law. They 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 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 “blanks” 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-- checking or not checking the square next to these statements does not really 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.

Despite efforts on the part of both parties to make this case seem very complicated, the basic standard for deciding it is really quite simple: To be effective, absentee ballot applications must contain a "statement that the person requesting the ballots is a qualified elector.” R.C. 3509.03. Do the allegedly flawed applications contain such a statement? As with a Rorschach test, the answer to this question depends on whom you ask. On the one hand, the forms do have printed on them the words "I am a qualified elector...." On the other hand, there is a square next to those words, one that the voter was clearly supposed to mark. 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, or that the voter is not taking a position on this issue either way? Does anyone actually think there is a “right” answer to this question?

Despite the ambiguity, the equities fall so heavily in favor of the Republicans that they alone are enough to decide the case. Nobody is seriously contending that the voters who failed to check the rectangles are not qualified. Furthermore, by filling out and mailing in application forms that had printed on them the words "I am a qualified elector," the voters clearly intended to communicate that they were qualified. And for Brunner to claim that she did not get the message makes her look more than a little bit obtuse. This cannot do anything except generate prejudice against her in the hearts of the Supreme Court justices.

There are other issues in the case, including the precarious question of whether mandamus relief is even available, an area in which the Court has seemed to draw some pretty arbitrary distinctions 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 analyzing mere shadows on the wall. The real issue is that, to a lot of people, Brunner’s order is going to seem unfair. Furthermore, chances are, at least four of those people sit on the Ohio Supreme Court.