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Election Law @ Moritz

Election Law @ Moritz

Free & Fair

The Adversarial Legal System at Work

The Secretary of State’s response in the case involving the claim that Ohio law requires the public display of precinct results at each precinct shows the benefit of having both sides to a legal dispute present their arguments before the court decides the case. Here, the Secretary of State makes two strong points as to why the Ohio Supreme Court should deny the claim. First, the Secretary of State issued its notice suspending the public display requirement on October 4, 2005, not a month ago, as erroneously stated in this space last night, but over a year ago. Therefore, the Secretary is on strong grounds for saying that this particular claim, filed just on Friday, is far too late to be considered, even if it otherwise had merit. Second, with respect to the merits itself, the Secretary observes that, although one part of Ohio law does mandate the public display of precinct results, that part—although never repealed by the General Assembly—arguably has been superseded by a more recent enactment, which provides for the open and transparent counting of votes, but in a different way. The newer law, which the Secretary says takes account of developments in vote counting technology, requires the “counting and tallying of ballots at the appropriate office, as designated by the board, in the full view of the members of the board and observers” (Ohio Revised Code section 3505.27). After this election, the General Assembly should go back and clear up the confusion between the two different sections of the state’s laws. In the meantime, however, given the lateness of the lawsuit, and the fact that sufficient transparency exists in the system under the Secretary’s current interpretation of the laws, it would seem proper for the Ohio Supreme Court to reject this particular claim.

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


Daniel P. Tokaji

What's the Matter with Kobach?

Daniel P. Tokaji

By "Kobach," I mean the Kobach v. EAC case in which the Tenth Circuit heard oral argument Monday – rather than its lead plaintiff, Kansas’ controversial Secretary of State Kris Kobach, who argued the position of his state and the State of Arizona. This post discusses what’s at issue in the case, where the district court went wrong, and what the Tenth Circuit should do.

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In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

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Info & Analysis

Judge Denies Motion for Preliminary Injunction in NC Case

U.S. District Judge Thomas D. Schroeder denied the motion for a preliminary injunction sought by the plaintiffs in a case challenging a new North Carolina voting law as violating the Voting Rights Act and the federal Constitution. Judge Schroeder also denied the defendants' motion for judgment on the pleadings. The case is North Carolina NAACP v. McCrory.

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