By Marianna Bettman
In last month’s column I discussed the still-undecided Hamilton county juvenile court election. In this column, I continue to examine this race, but this time, from the perspective of the relationship of the two sets of courts hearing the case, and to look at the next steps.
One of the curiosities of our judicial system is that we have state and federal courts that operate side by side, on parallel tracks. Each court system has trial courts, appeals courts and a supreme court. Of course on the federal side of the equation there is only one Supreme Court, which sits in Washington D.C., and its decisions are binding on everyone. Ohio’s equivalent is the Supreme Court of Ohio. It would be easy and convenient if federal courts dealt only with federal law and state courts dealt only with state law, but that is not the case. Each can deal with both.
In the Hamilton County juvenile court race, the Hamilton County Board of Elections (two Democrats, two Republicans) unanimously decided to count 27 provisional ballots that had been cast in the wrong precinct at the Board of Elections itself. The reason these ballots were cast in the wrong “precinct” (there actually are no precincts at the Board of Elections, but an employee hands the voter the ballot for the precinct the voter lives in when he or she shows an ID) was obvious. Some Board employee or employees gave the wrong ballot to those 27 provisional voters. But 849 other provisional ballots weren’t counted, including 269 cast at the right polling place, but at the wrong table in multiple precinct polling places.
All of this prompted Democratic candidate Tracie Hunter, at that point behind by 23 votes, to file a lawsuit in federal district court in Cincinnati alleging that the Board had violated her rights to due process and equal protection under the U.S. Constitution when it investigated poll worker error and then counted some provisional ballots, but not others. Chief Judge Susan Dlott agreed with her position, and ordered the Board of Elections to investigate poll worker error and count other provisional ballots cast in the wrong place due to poll worker error.
While matters were being litigated in the federal court, the Ohio Supreme Court heard a challenge by Republican candidate John Williams and a Hamilton County voter named John W. Painter to rescind certain directives from then-Democratic secretary of state Jennifer Brunner ordering the investigation of poll worker error, and to stop or at least sharply limit further counting of provisional ballots.
The Ohio Supreme Court held that under Ohio election law provisional ballots cast in the wrong precinct should not be counted, period, whether there was poll worker error or not. But because 27 provisional ballots miscast because of poll worker error had already been counted, and to try and avoid a direct conflict with Judge Dlott’s ruling that would have left the lawyers and the parties in an untenable position, the Ohio Supreme Court carved out a narrow holding. The Ohio Supreme Court ordered the Board of Elections to review all the ballots subject to Judge Dlott’s order “with exactly the same procedures and scrutiny” applied to those original 27 ballots. Poll worker error was not to be presumed, and poll workers were not to be questioned. Still, the Ohio Supreme Court was clearly uncomfortable in the position it found itself, and bristled a bit, noting in its decision that the only federal court that could really tell it what to do was the U.S. Supreme Court.
Meanwhile, back on the federal side off the ledger, the Board of Elections split along party lines on whether to appeal Judge Dlott’s order to count more provisional ballots. The Democrats on the Board did not want to appeal; the Republicans did. This tie vote was broken by Ohio’s new Republican Secretary of State Jon Husted. The Board filed an appeal of Judge Dlott’s order. This appeal went to the U.S. Court of Appeals for the Sixth Circuit, which sits in Cincinnati. This court is one step below the U.S. Supreme Court.
The panel of federal appellate judges that heard the Hunter case consisted of Judges Karen Nelson Moore and Guy Cole, two Ohio judges appointed by President Bill Clinton, and Judge John Rodgers of Kentucky, appointed by President George W. Bush. Judge Moore wrote the opinion for the court.
The first 17 pages of Judge Moore’s opinion summarize the complicated history of what has already happened in this case, most of which can be found in my last column. Moving on to her analysis, Judge Moore began by noting the special importance of election cases in this country. In America, the right to vote is fundamental, cherished, protected and sacred. A corollary to this is that each person’s vote counts the same as every other person’s. That’s what was at the heart of Bush v. Gore, and that is also at the heart of this case.
Judge Moore concluded that the Board’s decision to consider poll worker error in the case of some provisional ballots, but not others, raised serious federal equal protection concerns. And she also politely but firmly pushed back against the Ohio Supreme Court’s you-cant’-tell-us-what-to-do comment, responding that it was not for the state court to resolve the federal equal protection claim pending in federal court, and that the Sixth Circuit was not bound by the Ohio Supreme Court’s interpretation of federal constitutional law.
The Sixth Circuit decided it was premature (because the issue had not been briefed yet) to rule on Hunter’s argument that an Ohio law that says you can’t count provisional ballots cast in the wrong precinct for any reason, including poll worker error, violates due process. Can a federal court find that a state statute violates the federal constitution? You betcha. I personally think this is Hunter’s strongest argument.
The Sixth Circuit decision in this case was technically unanimous,. But Judge Rogers, the sole Republican on the panel, wrote his own short opinion. Although he called it a separate concurrence (meaning he agreed with the court’s conclusion but not its reasoning) I think what Rogers wrote was clearly a dissent. Most fundamentally, he does not see an equal protection violation in this case. He thinks the 27 votes cast at the Board of Elections were different from the other uncounted 849 provisional ballots. And it is clear that he thinks the first 27 should not have been counted in the first place, because Ohio state law does not allow for the counting of ballots cast in the wrong precinct, whatever the reason. At the oral argument of this case, he asked if those 27 ballots could be “uncounted.” And in his opinion, he suggests the solution here is for someone to bring a state-law challenge to the counting of those 27 ballots, not to count more wrongly-cast provisional ballots. While he praised the Ohio Supreme Court for complying with, not defying, Judge Dlott’s order (“this was a commendable exercise of discretion in a constitutional system where federal and state courts are independent of each other”), he also emphatically thinks the federal court should butt out of state election law. But wait! Isn’t that what the Democrats argued in Bush v. Gore? Ironically, every court that has heard this case so far has cited Bush v. Gore.
So here’s what happens next. There is a procedure under federal appellate law for a rehearing of a case “en banc”—meaning in front of all the active judges on the Sixth Circuit. Rather than hearing the case with the regular panel of three judges, cases of enormous public importance can be heard by all of the active judges on the court, sitting together. Right now, there are 15 of them, nine of whom are Republicans. A petition to hear the case en banc has now been filed by the Board of Elections. (Again, the Democrats on the Board did not want to do this, but were overruled.) I’m betting the court will hear the case en banc. If it doesn’t, the Board of Elections could try and appeal Judge’s Moore’s opinion to the U.S. Supreme Court. If it does, the en banc decision will supersede the one made by the three-judge panel. In turn, that en banc decision can be appealed by the losing side to the U.S. Supreme Court, which can tell everyone what to do. Time will tell.
While the Hunter case deals only with a single county election, there is no question that it has ramifications for the presidential election of 2012.