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Free & Fair

Cross-over voting under Ohio law

Blogs at both the Plain Dealer and Dispatch are reporting Republican cross-over votes in the Democratic candidate for Senator Clinton on the ground that she would be an easier nominee for Senator McCain to beat. It is unclear how widespread this phenomenon is and whether, if calculable, could make a difference in either the statewide total popular vote or the awarding of delegates between Senators Clinton and Obama. There is also the question whether it is legal, and if not, whether it is remediable in any way.

Although it is widely reported that Ohio permits Republicans to vote in the Democratic primary (and vice versa), that is not technically true. Ohio law does permit voters to switch party affiliation on the day of the primary, but it has a rather awkward mechanism that attempts to ascertain that the switch is sincere—and to prevent insincere “party-raiding” of the kind that (as described above) is being reported today.

Section 3513.19 of the Ohio Revised Code states that it is the “duty” of poll workers in Ohio “to challenge the right of [a] person to vote” in a particular party’s primary if a poll worker “doubts” the person’s eligibility based on the ground (among others) that the person is "not affiliated with or is not a member of the political party whose ballot the person desires to vote.” The same section further specifies that the poll worker is to determine the voter’s previous party affiliation by examining the voting records of the past two years. If those records show the voter to be a Republican, for example, then before giving the voter a Democratic ballot in the current primary, the statute then directs the poll worker to have the voter sign a “statement, made under penalty of election falsification, that the person desires to be affiliated with and supports the principles of the political party whose primary ballot the person desires to vote.”

This statement is supposed to be the test of the voter’s sincerity in switching party affiliation. Section 3513.20 of the Code make clear that a voter who refuses to sign the statement is to receive a provisional rather than regular ballot. Indeed, even if the voter is willing to sign the statement, but the majority of poll workers at the precinct believe the voter is not sincere in switching parties, then the poll workers are to give the voter a provisional rather than regular ballot.

In the past, local boards of elections have been lax about enforcing the requirement to make this statement and, instead, have simply handed out whichever party’s primary ballot is requested. In 2004, however, the Ohio Supreme Court ruled that this practice was an impermissible breach of the state’s election procedures. Maschari v. Tone, 103 Ohio St.3d 411, 816 N.E.2d 579. In that case, however, the court did not order a remedy for the violation because the particular candidate should have known about the lax enforcement practice in the particular locality that was relevant to his race—and therefore the candidate should have complained about it ahead of time.

There have been reports that, despite this supreme court ruling, some precincts are not enforcing the statutory requirements concerning this statement of new party affiliation and, instead, are reverting to the lax enforcement practice condemned by the court. The question then, at least hypothetically, is whether Senator Obama could bring some kind of legal challenge, distinguishing the current situation from the Maschari v. Tone precedent on the ground that he could not have known that these local precincts would have contravened the recently reaffirmed requirement.

One obstacle to any such challenge is that, since this 2004 precedent, Ohio’s legislature has adopted a new provision preventing any state-court challenge to the outcome of an election for federal office. The second sentence of section 3515.08(a) now states: “The nomination or election of any person to any federal office, including the office of elector for president and vice president and the office of member of congress, shall not be subject to a contest of election conducted under [the provisions of] this chapter [which otherwise would provide for such contest].” This language would presumably preclude Senator Obama from going to state court to challenge the results of the primary based on the violation of Ohio’s election law identified in the 2004 supreme court decision.

But what of the possibility of a suit in federal court? Senator Obama theoretically could claim that the variable enforcement of this state law in different precincts violates the Equal Protection Clause of the U.S. Constitution as interpreted in Bush v. Gore. That claim might not be ultimately meritorious, but it cannot be rejected out of hand for the reasons I have explained in an extended analysis of this Equal Protection precedent (as well as in a follow-up piece).

To be sure, as a practical matter, it may be difficult to make the case that inappropriate cross-over votes—i.e., those for which a “sincerity” statement from the voter should have been required but wasn’t—were enough for Obama to be deprived of an outcome he otherwise would have received. (What would that outcome be? A statewide victory, which has no legal significance? More pledged delegates, if—again hypothetically—that could be shown?) There is also the complicated intersection of Ohio’s election administration rules with the Democratic Party’s internal rules for awarding delegates, and this intersection might be enough to defeat an otherwise tenable Equal Protection claim on the ground that a federal court should not interfere with internal party decisions.

Finally, of course, the desire not to look like a “sore loser” (who runs to court to complain about Republicans voting for his opponent—when he purportedly claims to be the Democratic candidate more capable of attracting support from disaffected Republicans in November) might cause Senator Obama’s campaign to decline to pursue a legal remedy even if it were theoretically available.

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


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