arrowSection 5.3 - Recounts and Other Remedies

This topic is monitored by Moritz Law Professor Daniel Tokaji

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Recourse for Election Worker Misconduct

A qualified elector whose voting rights have been infringed by election officials can pursue several avenues of recourse. The elector may seek to invalidate the results of the election, to have the election officer removed from office, or to have the election officer prosecuted for criminal violations.

Individual voting rights can be infringed in a variety of ways. For instance, ballot language may be ambiguous or confusing, ballots may be lost or intentionally misplaced, or a qualified elector may be erroneously denied the right to cast a vote. In Ohio, any qualified elector may challenge election results outright when such infringement occurs. 1  As a general rule, however, the courts of Ohio are hesitant to set aside an election result and will do so only in extraordinary cases, wrought with flagrant and determinative election irregularities. 2  In particular, Ohio courts are not likely to invalidate the results unless the party challenging the election can prove with "clear and convincing" evidence both that at least one irregularity occurred, and that the irregularity affected enough votes to change or render uncertain the result of the election. 3  In adjudicating motions for invalidation, the Supreme Court of Ohio has recognized the fundamental principle that "citizens must be confident that their vote, cast for a candidate or an issue, will not be disturbed except under extreme circumstances that clearly affect the integrity of the election."4 

This burden is high. While it may often be possible to establish that a voting irregularity has occurred, demonstrating that the irregularity undermined the integrity of the election results is more difficult. In In re Election of Nov. 6, 1990 for Office of Attorney General, the Ohio Supreme Court acknowledged the presence of an irregularity, but refused to invalidate the results of the election. The Court based its decision on a finding that the challenger did not demonstrate that the irregularity undermined the integrity of the election even though the outcome was determined by the narrowest of margins (less than 1/4 of one percent of the vote). 5  "[I]t is the duty of the court to sustain an election authorized by law if it has been so conducted as to give a free and fair expression of the popular will." 6  Thus, even when a qualified elector has clearly suffered from some oddity in the handling of his or her vote, only in a very limited set of circumstances is an action to invalidate election results likely to be successful.

As an alternative to invalidation, an individual who believes that an election worker has acted improperly may also seek to have the alleged violator removed from the occupied position. For instance, county boards of elections are empowered to remove poll judges summarily at any time "for neglect of duty, malfeasance, or misconduct in office, or for any other good and sufficient reason." 7  In turn, "[t]he secretary of state may summarily remove or suspend any member [or employee] of a board of elections . . . for neglect of duty, malfeasance, misfeasance, or nonfeasance in office, or for any willful violation of Title XXXV [election worker duties], or for any other good and sufficient cause." 8  Election officials may also be subject to removal in accordance with Ohio Revised Code section 3.07, which provides that "[a]ny person holding office in this state . . . , coming within the official classification in section 38 of Article II, Ohio Constitution, 9  who willfully and flagrantly exercises authority or power not authorized by law, refuses or willfully neglects to enforce the law or to perform any official duty imposed upon him by law, or is guilty of gross neglect of duty, gross immorality, drunkenness, misfeasance, malfeasance, or nonfeasance, is guilty of misconduct in office." 10  A person alleging that the voting process has been tainted by election worker misconduct may file a formal complaint with the secretary of state to initiate removal proceedings against an alleged violator, and then may provide any information that is necessary in the hearings that will be conducted on the matter.

As an additional remedy, certain forms of election worker misconduct are expressly punishable as crimes. 11  For instance, an election worker who tampers with ballots may be guilty of a felony of the fifth degree. 12  (A recent example is discussed here.) Similarly, an election worker who interferes with the conduct of an election, 13  or who tampers with tabulating equipment, may be criminally liable. 14  In addition to these examples, an election worker who otherwise infringes on a qualified voter's right to engage in the democratic process may be subject to criminal punishment for any of a number of offenses specified in section 3599 of the Ohio Revised Code.

[Posted: August 23, 2004]

Notes

1. OHIO REV. CODE ANN. ' 3515.08 (West 1994).

2. See, e.g., In re Sugar Creek Local School Dist., 185 N.E.2d 809. 817-22 (Ohio Ct. Common Pleas, Putnam Cty., 1962).

3. In re Election of Nov. 6, 1990, for Office of Attorney General, 569 N.E.2d 447, 450 (Ohio 1991).

4. In re Election Contest of Dec. 14, 1999 Special Election, 744 N.E.2d 745, 748 (Ohio 2001) (internal quotation and emphasis omitted).

5. See In re Election of Nov. 6, 1990, for Office of Attorney General, 597 N.E.2d at 448, 463.

6. In re Carthagena Local School Dist., 155 N.E.2d 267, 271 (Ohio Ct. Common Pleas, Mercer Cty., 1958).

7. OHIO REV. CODE ANN. ' 3501.22(A) (Supp. 2003).

8. OHIO REV. CODE ANN. ' 3501.16 (Supp. 2003).

9. OHIO CONST., ART. II, SEC. 38 provides: "Laws shall be passed providing for the prompt removal from office, upon complaint and hearing, of all officers, including state officers, judges and members of the general assembly, for any misconduct involving moral turpitude or for cause provided by law . . . ."

10. OHIO REV. CODE ' 3.07 (West 1994); see State ex rel. Hughes v. Brown, 285 N.E.2d 376, 377 (Ohio 1972) ("R.C. 3.07 provides that only . . . upon complaint and hearing . . . shall a person holding office in this state . . . have judgment of forfeiture of said office with all of its emoluments entered thereon against him").

11. See OHIO REV. CODE ANN. '' 3599.16-3599.34 (Supp. 2003).

12. OHIO REV. CODE ANN. ' 3599.26 (Supp. 2003).

13. OHIO REV. CODE ANN. ' 3599.24 (Supp. 2003).

14. OHIO REV. CODE ANN. ' 3599.27 (Supp. 2003).