New GOP legal strategy: "Yadda, yadda" the part of the law you don't like
Submitted by modernesquire on Sat, 10/04/2008 - 7:58am.
On Friday, a GOP-inspired lawsuit was filed with the Ohio Supreme Court requesting that the Court issue a writ of mandamus (an order) against Secretary of State Brunner ordering her to allow partisan election monitors to "monitor" early voting at county Board of Elections. Never mind that the parties have never had election monitors to "observe" the casting of absentee votes. You can read the GOP's Complaint at the Ohio Supreme Court's website here. Because this was just filed yesterday, Secretary Brunner has not yet had an opportunity to file a reply.
But here's the crux of the GOP's argument. They claim that Ohio's public policy for transparency and accountability in elections require Ohio's partisan observers' law to be interpreted to permit partisan observers to monitor early votes being cast:
Ohio law makes clear that political parties have a right to request poll observers at polling places. R.C. 3505.21 provides that political parties during a general election "may appoint to the board of elections or to any of the precincts in the county or city one person, a qualified elector, who shall serve as observer for such party or such candidates during the castingand counting of the ballots ...."
Ellipses can be a funny thing. In legal writing, they allow the writing to skip over nonpertinent language in citing a statute. In this case, however, it allows the Republicans to "yadda, yadda" right past some pretty relevant language. Here's the entire text of R.C. 3505.21 (unfiltered but emphasis added):
At any primary, special, or general election, any political party supporting candidates to be voted upon at such election and any group of five or more candidates may appoint to the board of elections or to any of the precincts in the county or city one person, a qualified elector, who shall serve as observer for such party or such candidates during the casting and counting of the ballots; provided that separate observers may be appointed to serve during the casting and during the counting of the ballots. No candidate, no uniformed peace officer as defined by section 2935.01 of the Revised Code, no uniformed state highway patrol trooper, no uniformed member of any fire department, no uniformed member of the armed services, no uniformed member of the organized militia, no person wearing any other uniform, and no person carrying a firearm or other deadly weapon shall serve as an observer, nor shall any candidate be represented by more than one observer at any one precinct except that a candidate who is a member of a party controlling committee, as defined in section 3517.03 of the Revised Code, may serve as an observer. Any political party or group of candidates appointing observers shall notify the board of elections of the names and addresses of its appointees and the precincts at which they shall serve. Notification shall take place not less than eleven days before the election on forms prescribed by the secretary of state and may be amended by filing an amendment with the board of elections at any time until four p.m. of the day before the election. The observer serving on behalf of a political party shall be appointed in writing by the chairperson and secretary of the respective controlling party committee. Observers serving for any five or more candidates shall have their certificates signed by those candidates. Observers appointed to a precinct may file their certificates of appointment with the presiding judge of the precinct at the meeting on the evening prior to the election, or with the presiding judge of the precinct on the day of the election. Upon the filing of a certificate, the person named as observer in the certificate shall be permitted to be in and about the polling place for the precinct during the casting of the ballots and shall be permitted to watch every proceeding of the judges of elections from the time of the opening until the closing of the polls. The observer also may inspect the counting of all ballots in the polling place or board of elections from the time of the closing of the polls until the counting is completed and the final returns are certified and signed. Observers appointed to the board of elections under this section may observe at the board of elections and may observe at any precinct in the county. The judges of elections shall protect such observers in all of the rights and privileges granted to them by Title XXXV of the Revised Code.
No persons other than the judges of elections, the observers, a police officer, other persons who are detailed to any precinct on request of the board of elections, or the secretary of state or the secretary of state's legal representative shall be admitted to the polling place, or any room in which a board of elections is counting ballots, after the closing of the polls until the counting, certifying, and signing of the final returns of each election have been completed.
Not later than four p.m. of the twentieth day prior to an election at which questions are to be submitted to a vote of the people, any committee that in good faith advocates or opposes a measure may file a petition with the board of any county asking that the petitioners be recognized as the committee entitled to appoint observers to the count at the election. If more than one committee alleging themselves to advocate or oppose the same measure file such a petition, the board shall decide and announce by registered mail to each committee not less than twelve days immediately preceding the election which committee is recognized as being entitled to appoint observers. The decision shall not be final, but any aggrieved party may institute mandamus proceedings in the court of common pleas of the county in which the board has jurisdiction to compel the judges of elections to accept the appointees of such aggrieved party. Any such recognized committee may appoint an observer to the count in each precinct. Committees appointing observers shall notify the board of elections of the names and addresses of its appointees and the precincts at which they shall serve. Notification shall take place not less than eleven days before the election on forms prescribed by the secretary of state and may be amended by filing an amendment with the board of elections at any time until four p.m. on the day before the election. A person so appointed shall file the person's certificate of appointment with the presiding judge in the precinct in which the person has been appointed to serve. Observers shall file their certificates before the polls are closed. In no case shall more than six observers be appointed for any one election in any one precinct. If more than three questions are to be voted on, the committees which have appointed observers may agree upon not to exceed six observers, and the judges of elections shall appoint such observers. If such committees fail to agree, the judges of elections shall appoint six observers from the appointees so certified, in such manner that each side of the several questions shall be represented.
No person shall serve as an observer at any precinct unless the board of elections of the county in which such observer is to serve has first been notified of the name, address, and precinct at which such observer is to serve. Notification to the board of elections shall be given by the political party, group of candidates, or committee appointing such observer as prescribed in this section. No such observers shall receive any compensation from the county, municipal corporation, or township, and they shall take the following oath, to be administered by one of the judges of elections:
"You do solemnly swear that you will faithfully and impartially discharge the duties as an official observer, assigned by law; that you will not cause any delay to persons offering to vote; and that you will not disclose or communicate to any person how any elector has voted at such election."
Based on this explicit language (which the state legislature amended as recently as May 2006), Secretary of State Brunner said that Ohio law simply doesn't permit for partisan election monitors to observe the casting of early votes. The law is not vague. It says that partisan election observers can only be appointed to observe votes cast between the the opening and closing of polls during the primary, general, or special elections. The polls are not open. The parties may challenge any early vote cast and can observe the counting of any early voters. So the parties will be able to challenge the integrity of any early vote.
Board of Elections simply do not have the space to allow observers to watch voting without invading the constitutional right of any voter to cast their ballot in secret. The space limitations in most offices would result in observers being able to see how voters voted, which is impermissible. Why do most Board of Elections hold early voting in spaces where observers cannot be present? Because partisan observers have never "monitored" the casting of early votes.
The GOP is demanding something that is unprecedented and is not provided under Ohio election laws. Election laws that they wrote. Now, they want to claim that a broader public policy for transparency in the handling of ballots requires something that the legislature specifically declined to permit.
When there is ambiguity in a statute, "[t]he object of judicial investigation in the construction of the statute is to ascertain and give effect to the intent of the law-making body which enacted it." Slingluff v. Weaver (1902), 66 Ohio St. 621, paragraph one of the syllabus. However, when a statute is unambiguous, then the court has held: "then we need not interpret it; we must apply it." Sears v. Weimer (1944), 143 Ohio St. 312, paragraph five of the syllabus.
This statute is unambiguous--Ohio election law doesn't provide for partisan election observers to watch private citizens casting early ballots. Despite that, former Ohio Attorney General Jim Petro and the McCain campaign is arguing in front of the Ohio Supreme Court that they should disregarded their omitted language from the statute, and in keeping with a broader, unwritten public policy, "interpret" the statute to permit it.
Nevermind that earlier this week, the federal Sixth Circuit Court of Appeals rejected such an argument when the party sought a federal restraining order against Brunner to prevent the enforcement of her decision. (A decision that was joined by a Bush nominee. A decision in which the majority of the federal appeals corut strongly suggested that the federal court lack subject-matter jurisdiction in the first place.)
For all the talks about McCain wanting to appoint judges who apply the law instead of creating it, his campaign is before the Ohio Supreme Court advocating that the all-Republican court ignore the express language of the elected legislative branch and substitute it with what the McCain campaign believes the law should be. This is a textbook example of judicial activism.
The Ohio Supreme Court should reject the McCain campaign's invitation to ignore a law made by the popularly elected legislative branch and replace it with the court's own preferred policy. And John McCain, former AG Jim Petro, and the entire Republican Party are hypocrites for blasting court decisions they disagree with as "judicial activism" when they are blatantly demanding actual judicial activism to meet their partisan objectives.
Secretary of State Jennifer Brunner used to be a trial judge, and she is interpreting the law as she would as a judge. Despite all the Republican ranting and raving, her interpretation is objectively the correct and proper application of the law as expressed by the legislative branch. There's nothing partisan about it. If the Republicans have a problem with the law, they control the legislative branch. They should seek their remedy in the body which created this law-- the popularly elected legislature, not the courts.
[UPDATE]: I apparently missed a press release from Secretary of State Brunner on this issue in my e-mail inbox. Here's a small snipet of it:
Secretary Brunner issued Advisory 2008-24 noting that the Ohio General Assembly has not provided for election observers during the 35-day period for in-person absentee voting at boards of elections' offices or other designated sites.
"Fair administering of elections first requires attention to the law. In this instance, I am not philosophically opposed to observers during in-person absentee voting, but the legislature simply has not given me the authority to require that action."
Instead of foaming at the mouth trying to falsely label Brunner's actions as partisan, Kevin DeWine should perhaps pay more attention to the legislation he's supported in the legislature. If he's not happy with Ohio's election laws, then maybe he should pay more attention the next time he votes to change it. Time and time again, after blasting Brunner as a partisan, DeWine faces the inconvenient fact that Republican judges are finding that all Brunner did was properly apply the law that Kevin DeWine supported. It's embarassing, really.
Complicated question
Submitted by modernesquire on Sat, 10/04/2008 - 5:42pm.
Well, since the ballot is counted until Election Day, any party has until the counting of the ballots to challenge any vote made under the early voting process. All they can't do is actually watch the casting of the ballot. So, let's say you find out that tudorman voted on Friday, but he's a resident of Chicago.
A partisan observer, really anyone else can too, can obtain from a board of elections a list of voters who have already casted ballots. The observer can then challenge your vote at the appropriate time through the appropriate mechanism. All without having to observe tudorman casting his ballot.
Furthermore, the giving of the ballots during open voting is overseen by Board of Election officials in a manner that requires that the process is overseen by a representative of both the Democratic and Republican parties.
That's what my rough understanding is that the parties can do if they believe that early voters are being cast fraudulently. They can check to see who has voted and then investigate whether the voter is a legitimate voter and challenge the voter. They simply don't need to observe the casting of the early balloting.
But if they do believe that is necessary, then the General Assembly should pass legislation permitting it. The fact is that the General Assembly specifically declined to permit partisan observers during early voting. We shouldn't expect the Court to substitute its judgment with the elected legislature.
Understood...
Submitted by tudorman on Sat, 10/04/2008 - 8:58pm.
I'm not going to argue why this happened. As I stated, I haven't followed it that closely. It will be a shame if Ohio swings either way on fraudulant votes.
But I can see now why this is a concern, and it should be for anybody interested in the integrety of our elections. It would be pretty easy to falsely vote on a large scale. Get as many people as possible, create false utility bills, load them up in some vans, then drive around Ohio registering and voting over and over in one fell swoop. No picture ID required, right? Almost too easy. Even if there were observers, would they be able to challenge the registration? Can they make you produce a picture ID? Can they make copies of your voter registration document (utility bill, cell phone bill, etc) for later verification? The Sec. of State is saying safeguards are in place. How so? Will they Google the address to see if it comes up on the map?
I hope this gets fixed before the next election.
further questions
Submitted by kJk on Sat, 10/04/2008 - 2:36pm.
If I'm not mistaken, most of the present election law issues stem from the failure of the Republicans in the General Assembly to craft simple election law langauge in terms that eliminate questions on contentious issues and adhere to the most successful laws in various states in the union. Essentially, the Ohio Republicans who wrote these laws--particularly Lil' DeWhiner, made them as vague as possible because they thought the courts would make them more stringent than the language clearly states, and thereby protect the more political vulnerable legislature from any potential electorate pushback. Is this correct?
Tudorman
Submitted by ols on Sat, 10/04/2008 - 5:40pm.
My understanding is (not as a lawyer, as I've never actually been motivated to learn this fact, but as a voter who often casts ballots from oversees and therefore has asked this question numerous times) that when you cast an absentee ballot in Ohio it's counted as a "provisional ballot," meaning that your eligibility to cast the ballot is reviewed by the County Board of Elections after the non-provisional ballots have been counted. Before the ballots are counted, the County Board of Elections (which, of course, is partisan in Ohio) is provided with a list of the names of those persons casting absentee / provisional ballots for the County. The Board reviews the list and then has a meeting at which time any member of the Board can challenge any vote cast as being cast illegally, fraudulently, or invalidly (meaning, they voted in the wrong county or weren't registered to vote before the actual date). If a member of the Board raises an objection to an individual's vote, then the Board reviews the information available and the objection and takes a vote to determine whether the voter's cast ballot will be counted. I don't know what happens in the event of a tie, quite honestly, but if you contacted your local BOE they could/would probably tell you. Once the Board has approved all other ballots (which I imagine takes place as a single vote on all ballots not otherwise objected to), the ballots are opened and then counted (I was assured, although I don't know how accurately, that this didn't happen all at once, but rather all the ballots were opened and then all the ballots were counted, so that no one voter's ballot could be identified). So, the Board is provided with a list and has the opportunity to discover and investigate fraud. While one could argue it would be hard for an individual Board member to discover fraud, keep in mind that they are Partisan members of the Board and therefore they are probably allowed to share the lists with their parties for the purpose of review and determination of fraud.
So, I hope this answers your question. Again, this isn't from my own legal analysis of the process, but all second hand that I've gotten whenever I investigate whether my vote will be counted when I cast an absentee (I always ask because I'm always interested to see if the information I get from vote to vote or county to county differs).
Stolen elections?
Submitted by Randy on Sun, 10/05/2008 - 8:08am.
I've heard "news reports" of stolen elections and never made up my mind what I really believe on these stories. There is a book "Stealing Elections, Revised and Updated: How Voter Fraud Threatens Our Democracy" by John Fund that is on my future reading list. I'm curious your opinion of this book or other recommended reading...
What Would ME Do?
ME, first, thanks for the post. I admit that while I find this matter interesting, I have not studied it in detail. As a lay person and given my less than complete understanding of what is involved here, I am curious what you would do if the potential for voter fraud in this process were enough to motivate you into action. (Within the constraints of the situation as it currently exists.)
If the only opportunity to challenge the integrity of the early voting is during the counting, how would that be accomplished? Can any ballot be challenged and the Secretary be forced to validate that ballot? Or is the ballot assumed to be valid and the challenger must prove it otherwise? What is the mechanism to do this? At this point in the game, must we take it on blind faith that there was no fraud?
(Please note that I am not involved in my local party organization. I am simply curious. Any more I maintain my party affiliation moreso in the hope that someday a candidate will emerge that truly represents my views. So far, no luck. In fact, the gap is widening.)