Yesterday, the Ohio Supreme Court held that Ohio Secretary of State Jennifer Brunner exceeded her authority by refusing to appoint to a local board of elections two candidates nominated by the Republican Party (case page). The decision was based largely on the language of ORC 3501.07, which states that the secretary must appoint to elections boards candidates recommended by the two major political parties unless she has reason to believe the recommended candidates are not competent to serve. The statute gives the parties the right to challenge the Secretary’s refusal to appoint their candidates, but places the burden on them to prove that the recommended candidate is competent to serve.
Republicans challenged Brunner when she refused to appoint Alex Arshinkoff to the Summit County Board of Elections. They further alleged that Brunner violated the statute again when she refused to appoint another Republican nominee, Brian Daley, who Republicans had suggested to her after she rejected Arshinkoff. Brunner, for her part, argued that neither of these candidates were competent or professional enough to serve. Because of this, she argued, her eventual choice, Donald Varian, a long-time Summit County Republican, should be permitted to continue his service.
The judgment itself is per curiam and does not supply any reasoning, except to point to “reasons expressed in the concurring opinions…” of Justices O’Donnell and Cupp. O’Donnell’s concurrence, joined by Justice Lundberg Stratton, focuses on the following language from ORC 3501.07:
“The secretary… shall appoint… [board candidates nominated by the political parties], unless he has reason to believe that the elector would not be a competent member of such board…. [If the secretary rejects the candidate, the political party] may either recommend another elector or may apply for a writ of mandamus to the supreme court [to compel appointment of the original nominee].”
This language explicitly states that Brunner may reject the original nominee for cause. However, it does not explicitly state that Brunner may reject a second nominee. According to O’Donnell, this means that Brunner may not reject second nominees for any reason because the Secretary’s authority derives from statute and, “where the… statutes are silent, the secretary lacks authority.” ¶ 30. O’Donnell argues that this interpretation makes sense, because if the Secretary had the power to reject a second nominee then she could reject a third, a fourth, and so on, ad infinitum, causing a “board of elections to have only three members.” ¶ 32. In defending his opinion, O’Donnell suggested that Chief Justice Moyer ignored the statutory language because it “militates against the result he wishes to reach” and called the Chief Justice “disingenuous.” ¶¶ 43, 45.
Justice Cupp’s concurrence (joined by O’Connor) argues that the “plain meaning” of the statute is not as clear as O’Donnell claims. However, he does not recommend a different meaning, but only says the statute is ambiguous. He then focuses on another issue-- whether the Secretary was fair in her evaluation of Daley’s “competence”-- and concludes she was not. Cupp characterized Brunner as arguing that Daley was “competent” in the technical sense (intelligence, substantive knowledge, etc.), but that his personality was so abrasive as to render him sufficiently “incompetent” to justify rejection. This, in Cupp’s mind, is not enough. Although the Court upheld a prior Secretary’s refusal to re-appoint a board candidate for reasons related to personality, that case was different because the candidate had already served on the board and proved that his personality was incompatible with the office. In contrast, Brunner’s suggestion that Brian Daley’s personality was incompatible was “no more than speculation.” ¶ 78. “The statute,” Justice Cupp said, “requires a reasonable belief that the person is incompetent to serve on the board….” Because Brunner’s belief was not reasonable, she could not reject Daley.
Chief Justice Moyer in his dissent disagrees with both O’Donnell and Cupp. He says that O’Donnell is being overly technical when he insists that Brunner cannot reject a second recommended candidate unless the statute explicitly says so. ¶ 97. He also rejects O’Donnell’s reading because, where the Secretary rejected a first recommended board candidate, it would effectively give the political parties the right to choose whomever they wanted for the position. Moyer claims this would be absurd, so it could not be what the statute means. ¶ 98. Therefore, the true meaning of the statute must be that the Secretary can reject even a second nominee. (Justice Pfeifer echoed these thoughts in his dissent).
Moyer disagrees with Cupp because Cupp claims that the Secretary must have a reasonable belief of incompetence in order to reject a candidate. (Note that the statute does not use this language. Instead, it says that, in order to reject, the Secretary must have “reason to believe that the [board candidate] would not be a competent member”(emphasis added). There is no mention of reasonableness.) Rather, Moyer would uphold the Secretary’s decision to reject “so long as there was some evidence in the record before her to support her conclusion” (emphasis added). ¶ 108. Moyer claims that that evidence was present, and for that reason would defer to the Secretary’s judgment.
The meaning of this decision in unclear. O’Donnell’s concurrence would give more power to the political parties to put candidates on the Boards who reflect their views. If the Secretary rejects an initial nominee, political parties could apparently put whomever they want on the Board, no matter how incompetent, partisan, or abrasive. This would give political parties the ability to force the Secretary to approve a first nominee who is distasteful to the Secretary, but less so than a second, threatened nominee. The Secretary might go along with this lesser of two evils. But O’Donnell’s opinion is only a concurrence joined by one justice. For that reason, it might be treated as non-binding, in which case the above-described situation is unlikely to occur.
Cupp’s concurrence does nothing to clarify things, for two reasons. First, like the O’Donnell concurrence, it was only joined by one justice and could be treated as non-binding. Second, it simply does not address the issues identified by O’Donnell, but instead focuses on what it means to be “competent.” To Judge Cupp, a board candidate is effectively incompetent if the Secretary is able to muster up enough evidence to persuade a reasonable person that the candidate is incompetent. In other words, the Secretary has to build a moderate-to-strong case against her target before rejecting. Therefore, like O’Donnell’s concurrence, the Cupp concurrence would make it more difficult for the Secretary to reject a candidate of whom she disapproves.
However, even if the reasoning in these concurrences was treated as binding law, the decision would not much affect the November, 2008 election. Most board appointments were resolved long ago and, due to the disruption it would cause, will likely not be changing anytime soon. Nevertheless, if the concurrences become the law of the land, the long-term effects of this decision could be significant. Future board members will likely be less moderate than those currently appointed, and even current board members may be emboldened to act in a partisan way when they realize that the Secretary has little power to replace them with someone more to her liking.