Posted: November 25, 2008

Eyes Now Turn to Ohio Supreme Court

The U.S. Court of Appeals for the Sixth Circuit today sent back to the Ohio Supreme Court the case that involves disputed provisional ballots that might determine the outcome of one congressional and two state legislative elections. The federal appeals court’s ruling, which was a unanimous decision of the three-judge panel (made up of two Republican appointees and one Democratic appointee), was entirely jurisdictional and did not address the merits of the dispute. It reversed the contrary jurisdictional ruling of the federal district court and thus also vacated the district court’s decision on the merits.

The appellate ruling appears justified based on the submissions made to that court. It is certainly welcome that it is unanimous. Its opinion carefully explains why the case properly belongs in state court.

The Republican plaintiffs who challenged Brunner’s conduct regarding the disputed provisional ballots sought judicial relief solely on state-law grounds, and Brunner’s effort to re-characterize their legal claims as really resting on federal-law grounds was weak and ultimately unpersuasive. It is too bad that the federal district court did not also see the jurisdictional issue the same way, so as to avoid the delay caused by the need to start all over again in state court. (It is intriguing also that Brunner might have tried to rely on an entirely separate federal statute for “removing” the case to federal court, 42 U.S.C. § 1443(2)—which permits removal when an official enforces a “law providing for equal rights”—but she did not do so, and speculation about what might have been is perhaps better left to another occasion.)

Now that the case is back before the Ohio Supreme Court, one hopes that this elected body is able to issue a decision on the merits that does not appear politically, rather than legally, motivated. Whatever the actual motivation of its members, appearance is what matters here. A sharply divided ruling would increase the likelihood that opinion leaders in the state, and around the country, would perceive it as tainted by political considerations.

The Ohio Supreme Court has already issued a half-dozen or so rulings in election cases during this campaign season. But it is difficult, even for an election law specialist in Ohio, to keep all of them simultaneously in mind, in order to develop a sense of that court’s overall performance in these cases. (Some of these prior rulings have not been unanimous.) This case, however, will be the biggest of them all, precisely because the outcome of several extremely close elections potentially hangs in the balance. The court’s reputation is thus at stake here, regardless of what one might say about its track record in the previous cases.

It is likely also that Brunner will raise several federal-law defenses to the plaintiffs’ state-law claim now before the Ohio Supreme Court. Some of these federal-law arguments were presented in amicus briefs filed in the federal appeals court, including one based on the so-called “materiality” provision of 42 U.S.C. § 1971(a)(2)(B). In brief, the argument is that it is immaterial if a provisional ballot envelope lacks the voter’s printed name, if the voter’s signature is legible—and federal law precludes a state from making an immaterial omission a basis for disenfranchising a voter.

Another federal-law argument would be that the Help America Vote Act prohibits poll worker error from causing the disqualification of a provisional ballot on the ground that the voter’s affirmation of eligibility accompanying the ballot is incomplete. Brunner has made this argument as a matter of state law, but she could rely on similar statutory language in HAVA to add it as a separate federal-law defense. A reason for doing so is that, from her perspective, it would avoid having her “poll worker error” argument depend on the Ohio Supreme Court’s reconciliation of several state statutes that point in opposite directions. Even if HAVA is not entirely clear on this issue (as it is not clear on so many matters), there is no other provision of federal law that cuts the other way.

The Ohio Supreme Court is the ultimate authority on questions of state law. But it does not have the final word on questions of federal law. Thus, if there is any reason to think that the Ohio Supreme Court has acted politically, rather than judicially, with respect to the federal-law issues presented to it in this case, that reason would be a basis for seeking U.S. Supreme Court review. Although the U.S. Supreme Court understandably would be reluctant to get involved in another election dispute, that reluctance has another implication.

This case does not necessarily end with the Ohio Supreme Court, even if the U.S. Supreme Court refuses to get involved. At least with respect to the congressional election (involving Ohio’s 15th congressional district), the U.S. House of Representatives potentially sits in judgment over the Ohio Supreme Court’s treatment of federal-law issues with respect to the disputed provisional ballots. If the House perceives that the Ohio Supreme Court treats those federal issues improperly, and if those provisional ballots would indeed determine the outcome of a congressional election, that perception of state-court impropriety might motivate the House to nullify the state-court ruling and seat the opposing candidate.

I want to be abundantly clear here: I’m not advocating that course of action, which depends upon a series of “what ifs”. (The House itself, moreover, might be accused of acting politically, even if it were attempting to correct a perceived political ruling from the Ohio Supreme Court.) I’m not even attempting to assess the likelihood of what the House of Representatives might do in that situation, if events unfold that way. My only point here is that the stakes are high on how the Ohio Supreme Court handles this case, and many eyes (not just the most obvious ones) will be watching its performance.

One hopes that the court acquits itself well, to the benefit of its own reputation as well as the reputation of Ohio as a whole. For at least one thing should now be obvious: a state’s judiciary is a key component of the state’s overall system of implementing its voting laws. As we observed in From Registration to Recounts, it is not enough to evaluate the performance of a state’s chief elections officer, as well as its local election officials. It is also necessary to evaluate the performance of a state’s judiciary in its role in enforcing the state’s election laws.

Now, when it matters most, we will see how well the Ohio Supreme Court contributes to the state’s overall implementation of its voting process this year.

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