Read an update about this here.

Last month I wrote about a mandamus action filed directly in the Supreme Court of Ohio by Tom Niehaus, President of the Ohio Senate, and Lou Blessing, a State Representative and Speaker Pro Tem, against Secretary of State Jon Husted challenging a Consent Decree (“NEOCH consent decree”) entered into April 19, 2010 in federal court in Columbus by the Northeast Coalition for the Homeless, the Ohio Democratic Party and then Secretary of State Jennifer Brunner.  This Decree was to settle a lawsuit (originally filed against Secretary of State Kenneth Blackwell) challenging the Ohio Voter ID laws and Provisional voting laws, which plaintiffs claimed disenfranchised homeless and poor voters who could not afford a state issued ID. 

 Most significantly to the mandamus action, the NEOCH consent decree prohibits county boards of elections from rejecting provisional ballots cast by voters who use the last four digits of their social security numbers as identification (“NEOCH ballot”) if “the voter cast his or her provisional ballot in the wrong precinct, but in the correct polling place, for reasons attributable to poll worker error.”  I think these two members of the Republican leadership want the Supreme Court of Ohio to say that the Ohio Secretary of State cannot order the counting of any ballots cast in the wrong precinct for any reason. As I suggested in this earlier post, which you can read here, I think this action was a surrogate for the issues in the Tracie Hunter lawsuit. Taking it one step further, I think in both instances the Republicans want a declaration from the Ohio Supreme Court that these federal remedies are ultra vires; contrary to state election law.

It seems that Judge Algenon Marbley, the Columbus Federal District Judge who presided over the NEOCH Consent Decree, didn’t take kindly to the mandamus action. On May 8, the plaintiffs in the NEOCH matter filed an “urgent motion to enjoin Ohio Senate President Thomas E. Niehaus and Ohio House of Representatives Speaker Pro Tempore Louis W. Blessing, Jr. (Relators) and their counsel from further prosecuting the state-court proceedings in State ex rel. Niehaus v. Husted, Ohio S. Ct. Case No. 12-0639. (the Niehaus litigation).”

Here’s part of that motion, to provide a flavor of what’s going on here:

“In defiance of this Court‘s authority, Relators have petitioned for a writ of mandamus from the Ohio Supreme Court that would prevent Secretary of State Jon Husted from complying with a Consent Decree [cc-citations omitted] that this Court and the parties, including the State of Ohio, agreed upon two years ago to protect the fundamental right to vote. [cc] Because an injunction is necessary to protect this Court‘s order from being collaterally attacked in the Ohio Supreme Court, this Court should promptly grant the requested relief…”

“Plaintiffs also seek an order to show cause why Relators Niehaus and Blessing—who are officials and agents of the State of Ohio, a party to this case—should not be held in contempt for seeking to have the Ohio Supreme Court nullify the Decree.”

Here is the entire motion.

Judge Marbley orally granted plaintiffs’ motion almost immediately, and has indicated a full opinion will be forthcoming.  On Friday May 11, Niehaus and Blessing dismissed their mandamus action at the Ohio Supreme Court, without prejudice (meaning it can be re-filed at a later time.) Presumably, they can appeal Judge Marbley’s order at some point. 

A similar showdown almost took place in the Tracie Hunter/John Williams Hamilton County Juvenile Court election when Williams and Tea Party Activist John Painter filed a mandamus action in the Supreme Court of Ohio challenging Federal District Judge Susan Dlott’s handling of provisional ballots in the Hunter case.  At one point it seemed as if the Board of Elections had a Hobson’s choice in that case—obey one court, which meant disobeying the other.  But in the Hunter case the state and federal of decisions were harmonized to some extent—not necessarily philosophically, but enough to avoid a showdown.

Both the Tracie Hunter Juvenile Court election case and this challenge to the NEOCH Consent Decree raise fascinating questions about federal/state power—under Ohio law, ballots cast in the wrong precinct cannot be counted for any reason.  There are several ways of looking at this issue.  One is that any directive to count any ballots cast in the wrong precinct, whatever the reason, exceeds the power of the Ohio Secretary of State to order (which essentially has been the Republican position in both cases).  Another way of looking at this is that any state law that disenfranchises voters because of mistakes by poll workers, on whom they relied, has serious due process problems. Judge Karen Moore of the Sixth Circuit Court of Appeals, and Judge Dlott have both used language inviting a challenge to Ohio law on this basis. The third way, which determined the Hunter case, but is still on appeal on the merits, is an equal protection perspective–—once the Hamilton County Board of Elections chose to count 27 ballots cast in the wrong precinct at the Board of Elections itself because of poll worker error, it could not treat other right-polling-place/wrong-precinct ballots differently, but had to count those as well.

 Given the importance of Ohio in the national 2012 presidential race, I suspect that we haven’t seen the end of any of this yet.