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electionlineWeekly--April 7, 2011

Table of Contents

I. In Focus This Week

Litigation Update

By electionline.org staff

Six months after the 2010 election, courtrooms across the country are still sorting out disputes from the November vote. Two of the more high-profile cases had developments this week:

Ohio Provisional Ballot Controversy

On April 5, the Hamilton County (Cincinnati), Ohio Election Board indicated that they will ask the U.S. Supreme Court to review a recent federal appeals court decision involving provisional ballots in a recent judge’s race.

In November, GOP candidate John Williams defeated Democrat Tracie Hunter by just 23 votes out of nearly 220,000 cast, but a dispute arose soon thereafter about whether and how to count hundreds of provisional ballots that could affect the outcome. These provisional ballots were cast in polling places with tables for multiple precincts but were cast at the wrong table (precinct), which disqualifies them under Ohio law. Democrats claim that many of voters whose provisional ballots were rejected ended up in the wrong precinct because of pollworker error and should therefore be counted.

The case has had a complicated procedural history – including application of the terms of a pre-existing settlement in another case (NEOCH v. Blackwell) and conflicting directives from outgoing Secretary of State Jennifer Brunner (D) and her successor Jon Husted (R).

In December, a federal district court ordered the Hamilton County Board of Elections to conduct an expedited investigation of pollworker error. In early January, the Ohio Supreme Court clarified in State ex rel. Painter v. Brunner that “wrong-precinct” provisional ballots are not eligible to be counted under state law, whatever the reason for being cast in the wrong precinct.

Later that month, a panel of the U.S. 6th Circuit Court of Appeals ruled that while the Ohio Supreme Court’s opinion had clarified the law, the fact that an investigation had begun – and that some “pollworker error” ballots had already been counted – created an equal protection problem pursuant to Bush v. Gore.

After the full 6th Circuit refused to reconsider the panel’s opinion, the Hamilton County Board (whose Chairman is also leads the county GOP) – with the assistance of tie-breaking vote from Husted over the objection of two Democratic members -- voted to bring the case to the nation’s highest court. If the Court agrees to take the case (which they are not obliged to do) it could provide an opportunity to offer further guidance on the future implications of Bush v. Gore.

Challenge to Eligibility of Indiana Secretary of State Charlie White

On April 7 Marion Circuit Court Judge Louis Rosenberg ruled that the Indiana Democratic Party’s challenge to Charlie White's (R) eligibility to serve as secretary of state is valid, and he sent it back to the Indiana Recount Commission to be resolved.

Rosenberg heard arguments on Wednesday on whether White was legally eligible to serve as the state’s chief election officer.

Attorneys for the state Democratic Party argued that White was not legally registered to vote in the State, a requirement to hold office. The Democrats believe Vop Osili, White’s Democratic opponent in the 2010 general election (who was defeated handily by White), should be declared the winner. The State Recount Commission rejected this argument in December 2010; Osili and his attorneys seek to reverse that decision.

Rosenberg ruled that the Recount Commission must allow the Democrats to present their case. Rosenberg could've allowed the case to proceed in his courtroom, but in his ruling he said he felt that by sending it back to the Recount Commission, he would be creating "an opportunity for the political system to regain credibility."

The hearing is a separate matter from an indictment alleging that White committed voter fraud when he used an invalid address on his voter registration to cast a ballot. Should White be convicted on any of the seven felony counts against him, he would also be disqualified from holding office.

Coming soon to a courtroom? Wisconsin Supreme Court recount

On Tuesday, Assistant Attorney General JoAnne Kloppenberg defeated Justice David Prosser for a seat on the state Supreme Court. The margin of the race is exceedingly narrow – unofficial returns show a margin of just 204 out of more than 1.4 million cast – and so any recount (which must be requested) would be conducted at the state’s expense. Citizens for Election Integrity Minnesota has the full rundown on the laws, regulations and policies that will guide a recount in Wisconsin.

A recount will be quite an undertaking for the Badger State, which has more than 1,800 election jurisdictions statewide. The sheer number of localities to recount – combined with the state’s fierce partisan warfare which has made headlines in recent months – will likely lead to “ballot-by-ballot warfare in some places” according to Wisconsin election law expert Richard Esenberg.

Already, allegations of voter fraud are being raised, leaving open the distinct possibility of a legal challenge to the results once the recount is completed. That challenge itself would be complicated given the potential conflict of interest involved in a court hearing a challenge to the election of one of its own members, as Ohio State’s Ned Foley observes.