Election Law @ Moritz

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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Opinion and Analysis

Judge Dlott's 11/1 Order Barring Challengers Statewide: A Preliminary Analysis

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November 1, 2004

Judge Dlott's 18-page ruling, which prevents political parties (and other groups) from placing challengers at polling places tomorrow, is notable in several respects. First and foremost, it is premised on a constitutional analysis that the potential disruption of such challenges will hinder the rights of all voters, rather than a theory of racial discrimination as primarily emphasized by the plaintiffs. Second, Judge Dlott's decision does not condemn Ohio's challengers statute (R.C. § 3505.20) as "facially" invalid in all circumstances, but instead determines it to be unconstitutional in the particular circumstances of this year's election, involving the Republican Party's announced plans for an unprecedented large number of challengers. Third, this morning's ruling relies heavily on evidence presented at hearing in this case, Spencer v. Blackwell, which makes it more difficult – although by no means impossible – to challenge on appeal.

Dlott's Constitutional Analysis
As primary authority for the ruling, Judge Dlott relied on Anderson v. Celebrezze, 460 U.S. 780 (1983), a U.S. Supreme Court decision concerning independent presidential candidate John Anderson's right to be on the ballot in 1980. Although that factual context obviously differs somewhat from the issue of polling place challengers, Judge Dlott invoked the precedent for its overarching balancing test in cases involving administration of the electoral process. The essence of Judge Dlott's reasoning was that the presence of a large volume of partisan challengers in the particular context of this year's elections threatened a severe impairment of the constitutionally protected interest of voters, while the State of Ohio could achieve its valid – indeed compelling – interest in preventing voter fraud through less burdensome means. Most notably, according to Judge Dlott, the ability of poll workers (officially known as "election judges") to challenge the eligibility of voters, coupled with the review of registration forms before names are put on the rolls, suffices to protect against fraud.

The Particular Circumstances of This Year's Election
Given the evidence presented to Judge Dlott, she found that the large volume of challengers recruited by the Republican Party this year were inadequately trained in challenge procedures under Ohio law. She also observed the existence of confusion among various state and local officials responsible for administering the electoral process, including the conflict that has emerged between Secretary of State Blackwell and Attorney General Petro. Given the large number of new registrations this year, and the expected high turnout tomorrow, in her judgment the situation was one likely to impair the rights of voters waiting in line. "The sheer number of people present in and around the polling place, the unprecedented number of newly registered voters, and the presence of inexperienced challengers, lacking any significant training and limited by precinct workers who have never before had to deal with such a situation, creates an extraordinary and potentially disastrous risk of intimidation and delay." (Ruling, page 12-13; similar language also on pages 11-12.)

The Possibility of an Appeal
Election Law @ Moritz has not heard whether Attorney General Petro will seek an emergency appeal, or stay, of this ruling from the Sixth Circuit federal court of appeals. One point to note, however, is that the AG's argument on appeal likely would be quite different from the brief submitted yesterday to Judge Dlott. That brief focused largely on the plaintiffs' claim of racial discrimination, but since Judge Dlott sidestepped that argument, any appellate argument from the AG would need to focus on Judge Dlott's Anderson-based constitutional analysis concerning the potential impediment to all voters.