Posted: November 6, 2006

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that, although one part of Ohio law does mandate the public display of precinct results, that part—although never repealed by the General Assembly—arguably has been superseded by a more recent enactment, which provides for the open and transparent counting of votes, but in a different way.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