Calfee Report on Ohio Government: Your Monthly Update from the Statehouse
Democrats and Republicans wrangle over voting rights
As the November 2012 election approaches, Ohio has seen numerous state and federal lawsuits filed challenging the rules for this year’s contest. While lawsuits in 2008 focused on claims of voter fraud, the latest crop of suits allege voter suppression, challenging early voting rules and the way provisional ballots are cast and counted.
In one of the more contentious of the suits, Obama for America v. Husted, President Barack Obama’s re-election campaign teamed up with the Democratic National Committee and the Ohio Democratic Party to challenge the elimination of the final three days of early voting – Saturday, Sunday and Monday – before the election. The campaign and Democrats have argued that those three days were among the most popular for early in-person voters in 2008, but Republicans and elections officials have argued that boards of elections need those days to prepare for Election Day. Plaintiffs have argued that current law has resulted in arbitrary distinctions between military and everyday voters, violating constitutional equal protection rights. Military voters are allowed to vote at a local board of elections during the final three days before the election if the elections office is open, including the Monday before Election Day, despite a directive Husted issued on August 15 that sets standard hours of operation for county boards of election and that does not allow for weekend hours. Attorneys for Secretary of State Jon Husted said that military voters face unique circumstances normal voters do not in the few days before the election, such as being called away for active duty just prior to Election Day. The August 15 directive sparked controversy and resulted in the August 28 dismissal by Husted of two Montgomery County Board of Elections members that voted for a motion to extend in-person early voting hours to include weekends.
But on August 31, U.S. District Court Judge Peter Economus sided with the plaintiffs, ordering Husted to restore the final three days of early in-person voting. Judge Economus concluded that plaintiffs were likely to succeed on the merits of their case and said provisions passed by the 129th General Assembly ending early in-person voting violated the Equal Protection Clause of the United States Constitution. In his order, Economus required Husted to restore the three days of early in-person voting. As part of his response to the decision, Husted has issued a new directive specifically banning county boards of elections from authorizing any in-person early voting on the final weekend before the election while he appeals the decision. The U.S. Sixth Circuit Court of Appeals has set an expedited briefing schedule for the appeal, with first briefs due by September 10, while the final briefs are due September 21.
Other lawsuits making their way through the courts include a challenge to the removal of the House Bill 194 referendum from the ballot; challenges regarding how provisional ballots are handled; a lawsuit alleging that Ohio has failed to take reasonable steps to maintain clear voter registration lists; and a challenge to the ballot language set by the Ohio Ballot Board for Issue 2, which would change the way Ohio draws its congressional and General Assembly lines.
JobsOhio sues administration
Frustrated by the lack of progress that has been made to transfer the state liquor enterprise to JobsOhio, the Kasich administration has taken the unusual step of effectively suing itself to induce the Supreme Court of Ohio to rule once and for all on the constitutionality of the state’s private nonprofit economic development entity. JobsOhio and its president, interim state Chief Investment Officer Mark Kvamme, have filed suit against Ohio Department of Commerce Director David Goodman to compel the agency to sign a state contract to transfer its wholesale liquor operation to JobsOhio for 25 years. Goodman has declined to sign the liquor transfer agreement, not because he opposes it, but because of ongoing legal challenges to JobsOhio backed by ProgressOhio and several Democratic lawmakers. The 10th District Court of Appeals affirmed a lower court finding that the group lacked standing to challenge JobsOhio, prompting the lawmakers and ProgressOhio to go directly to the Supreme Court. The Supreme Court has yet to say whether it will accept the case.
Calling the latest lawsuit a “shell game,” Senator Mike Skindell (D-Lakewood), Representative Dennis Murray (D-Sandusky) and ProgressOhio have moved to intervene in the case. The parties’ motion states, in part, “Any judgment arising from such collusion would be tainted, so this case should not remain on this Court’s docket absent the presence of parties in true opposition,” adding that only by allowing the lawmakers and ProgressOhio to present “genuine opposition and bona fide research will separation of powers and the public interest be served.”
Added Murray, “The Kasich administration is playing litigation paddy cake with itself to try to distort Ohio constitutional law. Both sides of this sham litigation say that they think JobsOhio is constitutional, meaning that if the Court were to decide this case, neither ‘side’ of the Kasich administration would be arguing to protect the Ohio Constitution or the people of this state from exactly this kind of government overreach that the constitution is designed to prevent.”
Multiple Ohioans among national convention speakers
Both the Democrat and Republican National Convention goers were treated to speeches from multiple Ohioans this year. The Republican National Convention, held August 27-30 in Tampa, Florida, included speeches from Governor John Kasich, U.S. Senator Rob Portman and Steve Cohen, CEO of Screen Machines Industries, a construction equipment manufacturer headquartered in the Columbus area. Ohioans also received plenty of air time at the Democrat National Convention, held September 4-6 in Charlotte, North Carolina. Former Governor Ted Strickland, U.S. Representative Marcia Fudge and former Ohio Representative and current Congressional candidate Joyce Beatty were among the Ohio politicians speaking at the convention. Cincinnati firefighter Doug Stern also spoke, while Elaine Brye, a teacher from Winona, introduced First Lady Michelle Obama. As expected, Mitt Romney and Barack Obama were both officially selected as their party’s nominee for the presidency.
For more information, including Legislator contacts and Committee schedule, visit: www.legislature.state.oh.us
James F. Lang heads the telecommunications and public utility practice and is co-chair of the e-discovery practice area. He provides litigation counsel to a wide range of clients, including public utilities, municipalities, private property owners and publicly- and privately-held companies. He also assists clients in achieving their business objectives through active participation in legislative drafting and agency rulemaking. He is an editor and author of Gotherman, Babbit & Lang, Local Government Law – Municipal (1st ed. 2004).
The Government Relations Team
Calfee’s comprehensive Government team consists of lobbyists who are also attorneys that have held top positions in government and business. From a former President of the Ohio Senate, member of Congress, Mayor of Cincinnati, and Director of the Ohio EPA, our collective backgrounds enable us to help clients communicate and work effectively with all levels of government – on both sides of the political aisle.
This alert is provided by Calfee, Halter & Griswold LLP for education and information purposes only. This alert is not intended to provide legal advice on specific subjects. The resolution of legal issues depends upon the specific facts of a particular situation and the laws involved. This alert may be considered advertising under applicable laws.