Recent Postings

Below are postings from the past 30 days. (See Archives)

Niehaus and Blessing File Notice of Dismissal in Ohio Supreme Court

May 11 - In accordance with Judge Marbley's order issued orally late yesterday in the NEOCH v. Husted case, Ohio legislators Thomas Niehaus and Louis Blessing have filed a notice of dismissal without prejudice of their mandamus action in the Ohio Supreme Court.

Judge Grants NEOCH Plaintiffs' Motion to Halt Ohio Supreme Court Proceedings

May 11 - Late yesterday, U.S. District Court Judge Algenon Marbley orally granted a motion of the plaintiffs in NEOCH v. Husted (formerly NEOCH v. Brunner), enjoining further prosecution by two state legislators of a mandamus action in the Ohio Supreme Court. Judge Marbley ordered the legislators to dismiss the complaint, which challenged the Ohio Secretary of State's authority to issue certain directives pursuant to a 2010 consent decree filed in the district court. A written opinion and order will follow.

NEOCH Plaintiffs File Motion to Halt Legislators' Ohio Supreme Court Action

May 8 - The Plaintiffs in the federal NEOCH v. Brunner case filed a motion today in the district court to enjoin related proceedings in the Ohio Supreme Court instituted by Ohio legislators Thomas Niehaus and Louis Blessing. The NEOCH plaintiffs are asking the district court to enjoin the legislators from further prosecuting the state court proceedings and show cause why they are not in contempt for violating the district court's 2010 consent decree. The legislators' mandamus action in the Ohio Supreme Court seeks an order requiring the Ohio Secretary of State to rescind directives issued pursuant to the consent decree. The directives permit provisional ballots to be counted even if cast in the wrong precinct or if some signature requirements are not fully complied with for reasons attributable to poll-worker error. The legislators assert that the Ohio Secretary of State did not have the authority under the Ohio Constitution to issue the directives because the directives effectively amend law created by the legislature.

Winner Declared in 2010 Ohio Judicial Election

Apr. 30 - Late Friday, Hamilton County Board of Elections officials completed their counting of approximately 300 disputed provisional ballots in a 2010 juvenile court judge election. The board's count resulted in a 71-vote victory for Democratic candidate Tracie Hunter, who had initially lost the election by 23 votes to Republican John Williams. In February, U.S. District Court Judge Susan Dlott ordered the board to count the disputed ballots, finding that the board violated provisional voters' right to equal protection. The dispute centered on provisional ballots cast in the correct polling place, but at the wrong precinct table. Judge Dlott found that the board should have counted certain provisional ballots miscast due to poll worker error. The Sixth Circuit Court of Appeals refused to stay the district court's order, triggering the counting of the provisional ballots. An automatic recount will begin May 7. An additional appeal to the Sixth Circuit appears likely to follow.

Further complicating matters is the mandamus action recently filed in the Ohio Supreme Court by two Ohio Republican legislators. The relators seek an order for the Secretary of State to rescind directives issued pursuant to a consent decree in the federal NEOCH v. Brunner case. The directives permit provisional ballots to be counted even if cast in the wrong precinct or if signature requirements are not fully complied with because of poll worker error.

OH Provisional Ballot Case Developments

Apr. 17 - Yesterday brought two developments in Ohio regarding provisional ballot counting. First, Ohio Senate President Niehaus and Ohio House Speaker Pro Tempore Blessing filed a mandamus action in the Ohio Supreme Court to require the Secretary of State to rescind directives issued pursuant to a consent decree resulting from the federal NEOCH v. Brunner case. The directives permit provisional ballots to be counted even if cast in the wrong precinct or if some signature requirements are not fully complied with for reasons attributable to poll-worker error. The complaint claims that constitutional separation of powers do not permit the Secretary of State to amend or modify laws passed by the General Assembly without authorization from the General Assembly.

In another provisional ballot case, the 6^th Circuit Court of Appeals denied the Hamilton County Board of Elections request for a stay of the District Court’s decision that provisional ballots cast in the wrong precinct, again due to poll-worker error, should be counted. This case relies on a federal equal protection claim, as some wrong-precinct ballots, cast wrongly due to poll-worker error, were counted.