Turf war on counting provisional ballots

By Marianna Bettman

It’s official — Tracie Hunter won the 2010 Hamilton County Juvenile Court election by 74 votes. Before the nearly 300 disputed provisional ballots were finally counted, Hunter was behind by 23 votes, so the protracted litigation paid off for her.

But please don’t think the challenge to the counting of provisional ballots cast in the right polling place but wrong precinct because of poll worker error has gone away. Far from it. That issue is still on appeal in the Hunter case to the federal Sixth Circuit Court of Appeals. And here’s another line of attack that didn’t get much publicity in the local press.

On April 18, Tom Niehaus, president of the Ohio Senate, and Lou Blessing, a State Representative and Speaker Pro Tem, filed an original action in mandamus in the Supreme Court of Ohio against Secretary of State Jon Husted challenging the NEOCH Consent Decree.

This Decree, entered into April 19, 2010 in federal court in Columbus by the Northeast Coalition for the Homeless, the Ohio Democratic Party and then Secretary of State Jennifer Brunner was to settle a lawsuit (originally filed against Secretary of State Kenneth Blackwell) challenging the Ohio Voter ID laws and Provisional voting laws.

Plaintiffs claimed these laws disenfranchised homeless and poor voters who could not afford a state issued ID.

Among other things, the NEOCH Consent Decree prohibits county boards of elections from rejecting provisional ballots cast by voters who use the last four digits of their social security numbers as identification if the voter cast his or her provisional ballot in the wrong precinct, but in the correct polling place, for reasons attributable to poll worker error.

In their mandamus action in the Ohio Supreme Court, Niehaus and Blessing argued that the rules for investigating provisional ballots under the NEOCH Consent Decree are contrary to state election law, improperly amend state election law, and exceed the authority of the Secretary of State to implement. They asked the Ohio Supreme Court to order Secretary Husted to rescind all directives ordering the implementation of these challenged aspects of the Consent Decree.

Something similar to this was attempted in Tracie Hunter’s case. John Painter, a local tea party activist, along with candidate John Williams, also filed a mandamus action in the Ohio Supreme Court asking the Court to order then Secretary Brunner to rescind certain directives ordering the investigation of poll worker error in regard to provisional ballots cast in the right polling place but wrong precinct. The common theme in both these actions is to stop the counting of provisional ballots cast in the right polling place but wrong precinct, even if the reason was poll worker error. The mandamus action in the Hunter case was resolved, however, without warfare between the Ohio Supreme Court and Judge Susan Dlott, the judge who presided over the Hunter case in federal court. The challenge to the NEOCH consent decree was resolved differently.

On May 8, the plaintiffs in the NEOCH matter filed a motion in federal district court in Columbus, asking Judge Algenon Marbley, who presided over the NEOCH Consent Decree there, to enjoin (meaning to stop) the mandamus action in the Ohio Supreme Court. On May 10, Judge Marbley did exactly that. He ordered Sen. Niehaus and Rep. Blessing to dismiss their mandamus action or show cause why they should not be held in contempt of court.

It’s an interesting question by what authority a federal judge can order anyone to dismiss a case in a state supreme court, and Judge Marbley wrote a fascinating opinion justifying his action.

Judge Marbley characterized the primary purpose of the mandamus action as a move to “compel the Secretary [of state] to disobey this Court’s orders pursuant to the Consent Decree.” That’s strong language, believe me. He also found that the two legislators had filed the mandamus action in their official capacities as members of the Ohio General Assembly and as agents of the state of Ohio. Since the State of Ohio is a party to and bound by the terms of the NEOCH Consent Decree, so are the two legislators.

Taking things a step further, Judge Marbley ruled that even if the legislators weren’t parties, the All Writs Act, (which was originally part of the Judiciary Act of 1789) gave him the authority to bind nonparties to prevent the frustration of the NEOCH Consent Decree.

“Simply because Relators (Niehaus and Blessing) now find their particular individual interests to be in conflict with certain provisions of the Consent Decree does not magically release them from its terms; otherwise, entering the decree would have had no purpose,”

Marbley wrote. “The practical effect of the Relators’ action is to frustrate this Court’s final judgment from being carried out, and the All Writs Acts allows the Court to enjoin the Relators from proceeding with it.” And he chided the legislators for not invoking one of the specific provisions of the NEOCH Consent Decree which provides a mechanism for any party to it to challenge its terms, instead of filing the mandamus action.

In a far more conciliatory tone, Judge Marbley made it clear that his ruling was not a challenge to the authority of the Ohio Supreme Court to decide Ohio law, but was only a “limited intrusion into the Ohio Supreme Court proceedings necessitated by the Relators’ prior commitments in this Court.” An injunction was necessary in this case because the Secretary of State simply cannot obey “conflicting orders on how to direct the Board of Elections.”

Also explaining why the extraordinary remedy of injunction was necessary in this case, Marbley wrote, “Conflicting orders to the Secretary [of state] from the Ohio Supreme Court would not only undermine the jurisdiction of this Court, but would further confuse an already well-muddied electoral landscape in these critical months leading up to a Presidential Election.”

On May 11, the two legislators did dismiss their Ohio Supreme Court mandamus action. But I wouldn’t be surprised if they filed an appeal from Judge Marbley’s order giving them the “choice” of dismissing the case or being held in contempt of court if they didn’t.