Dan Tokaji's Blog
Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Friday, July 18
Injunction for Libertarian Party of Ohio and Barr
U.S. District Judge Edmund Sargus, Jr. has issued this order, requiring that the Ohio Secretary of State place on the general election ballot the names of various Libertarian Party candidates, including Bob Barr. The order is based upon the Sixth Circuit's 2006 decision in Libertarian Party of Ohio v. Blackwell, which declared Ohio's ballot access statutes unconstitutional -- and the Ohio legislature's subsequent failure to enact constitutional ballot access requirements.

The case raises an intriguing question regarding the authority of the state executive branch to make ballot access rules, given Article II, Section 1's requirement (discussed in the Bush v. Gore concurrence but not decided by the majority opinion) that "Each State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors." Ohio's Secretary of State Jennifer Brunner issued a directive to fill in the gap left by the legislature. Relying on the Bush concurrence and McPherson v. Blacker(1892), which said that Article II "leaves it to the legislature exclusively" (emphasis added) to define the method of appointing electors, Judge Sargus concludes that the Constitution "provide[s] for no role on the part of the executive branch of state government as to the election of President ...." He comes to the same conclusion with regard the Article I, Section 4's requirement that the time, place and manner of holding congressional elections "be prescribed in each State by the Legislature thereof."

Judge Sargus acknowledges that there is a dearth of precedent on these questions. Could this be the case in which the Supreme Court issues some definitive guidance on the relative authority of the state legislative and executive branches to make rules for presidential and congressional elections? (I briefly discussed this issue at the end of my 2005 article Early Returns on Election Reform.) In my view, it would be far better for the Court to do so in a pre-election case like this one, than to wait for the issue to reemerge in a post-election case like Bush v. Gore.

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