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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Free & Fair

A Bipartisan Way to Settle a Disputed Presidential Election in Ohio?

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February 14, 2007

As a follow-up to yesterday’s comment, I suggest that it might be advisable for Ohio’s political leaders this year to create some kind of bipartisan structure to avoid the (admittedly remote) possibility of a dispute between the Secretary of State and the state’s supreme court concerning which slate of presidential electors should be certified as victorious. Last year, the state’s General Assembly did adopt a new provision that bars the state’s judiciary, including its supreme court, from considering any post-certification contest to the result of a federal election, including a presidential election. (See Ohio Revised Code § 3515.08(A).) Notwithstanding that provision, however, it is not inconceivable that, during the time after Election Day when county boards of election are canvassing their returns, the Ohio Supreme Court would entertain a petition for writ of mandamus, or writ of prohibition, seeking a decree ordering the Secretary of State to exclude from her official certification certain disputed ballots that the Secretary, based on her authority as the state’s chief elections officer, has determined should be included.

In this situation, one might think that the Secretary has no choice but to obey the Ohio Supreme Court’s decree. But what if the Ohio Supreme Court divided 4-3 on the issue, with dissenting Republican justices accusing their fellow Republicans in the majority of acting politically rather than judicially—a situation that might embolden the Secretary of State to exercise independent judgment regarding her responsibilities to the integrity of the electoral process in Ohio? Or, to put the point more forecefully, what if the state’s new Attorney General, who like the new Secretary of State is also a Democrat, renders an opinion that the state supreme court is without jurisdiction in the matter and thus its decree is void and not to be followed? Or suppose there is a conflicting decision from the local federal court in effect on the date when the Secretary of State must certify the presidential election, and (again, on the advice of the state’s Attorney General) she chooses to obey that judicial order rather than the contrary one from the state supreme court? (That judicial conflict might disappear before the need for the U.S. Supreme Court to intervene, if the federal court of appeals overturns the federal district court’s order, but that intervening appellate decision might not occur until after the Secretary of State issues her certification of the election.)

Alternatively, even if the Secretary of State obeys the state supreme court, Ohio’s new Governor (who is also a Democrat) may send to Congress the slate of electors that the Secretary of State would have certified had she not been under legal compulsion from the state supreme court to do otherwise. (Federal law, 3. U.S.C. § 6, entrusts in the “executive of each State” the duty of transmitting to “the Archivist of the United States” the “final ascertainment” of the electors appointed from that state.) Or the Governor might choose to submit to Congress two competing slates of electors in acknowledgement of the balloting dispute that has occurred in the state. Finally, even without such a formal submission from Ohio’s Governor, in Congress on January 6, 2009, there may be an objection to the state’s presidential electors decreed by the state’s supreme court, which would cause both Houses of Congress to vote on what to do with the state’s disputed election. (For additional discussion of scenarios like these, see John C. Fortier (ed.), After the People Vote: A Guide to the Electoral College (3rd ed. 2004), a helpful introductory guide to what can occur when a dispute arises over presidential ballots.)

If any of these possibilities are messy and unseemly enough that they are worth preventing in advance, no matter how low-risk they might be, then amending Ohio law to establish a bipartisan dispute resolution mechanism for presidential elections deserves some consideration this year. The amendment would make clear that all disputes concerning the counting of ballots for the state’s presidential electors, after those ballots have been cast on Election Day, belong to the exclusive jurisdiction of the new bipartisan body, and the state’s judiciary may not entertain any challenges (whatever the procedural form) to that body’s consideration of any such disputes. Perhaps this body could be as simple as a three-member panel, consisting of the state’s new Secretary of State (again, a Democrat), the state’s new Auditor (a Republican), and a third individual mutually agreeable to those two. Of course, if this bipartisan structure were to last beyond the 2008 election, there would need to be a different method of selecting a panelist from the opposite political party of the Secretary of State if the Auditor happened to be from the same party. But if the political will exists to create such a bipartisan structure, that detail easily could be addressed. And now, with the General Assembly controlled by one party and the governorship controlled by the other, would be the time for this political will, if ever it is to occur.

Ohio could do Congress—and the nation—a favor if it were to develop a bipartisan structure to resolve disputes that conceivably might arise in 2008 concerning the ballots cast for the state’s presidential electors.