New issue in Ohio election feud?
on Apr 18, 2011 at 4:38 pm
A juvenile judgeship candidate and a county election board in Ohio, pressing their claim for a delay of a Sixth Circuit Court ruling requiring a recount of November balloting for the judicial office, on Monday accused the rival candidate of trying to set the stage to challenge a Supreme Court election precedent that lower courts have relied upon for nearly seven decades — the 1944 ruling in Snowden v. Hughes. That precedent, which the candidate and the board argued forgives isolated errors in counting ballots, is a target of the opposing candidate, the reply brief argued. (The briefing is now completed on the application in Hamilton County Board of Elections, et al., v. Hunter [10A989], so action by the Court could come at any time.)
The application to block the Sixth Circuit decision is before Justice Elena Kagan, as the Circuit Justice for preliminary matters from that region, but it is fairly common for individual Justices to share such decisions with their colleagues. The Sixth Circuit Court ruling, which the election board and candidate John Williams plan to challenge in a coming appeal, ordered the board to check out perhaps hundreds of ballots cast for the juvenile judgeship in Hamilton County last November, finding a Bush v. Gore violation in the board’s refusal to count those “provisional” ballots when it chose to count some 27 other such votes cast in similar circumstances.
As this dispute reached Justice Kagan on April 9, it was primarily a test of whether the Court would now apply the Bush v. Gore decision on equality in vote-counting to local election contests. The Hamilton County board and candidate Williams contended that the controversial 2000 decision in a presidential election contest did not reach a local vote-counting dispute, especially when the claimed errors were isolated and unintentional. They relied in part on the Snowden precedent for their challenge to the Sixth Circuit.
Rival candidate Tracie Hunter challenged the Snowden ruling in her brief, filed last Friday, suggesting that it was at least out of date and perhaps no longer binding, because more recent civil rights rulings have eliminated the need to prove intentional bias in voting rights cases. The Sixth Circuit, she argued, was correcting in rejecting the board’s and Williams’ reliance upon that 1944 ruling.
Countering that suggestion on Monday, the board and Williams said that the Justices have never abandoned the Snowden decision, and that lower courts have continually relied upon that ruling “for 65 years.” Moreover, the reply brief contended, the federal appeals courts are divided on the lawfulness of isolated vote-counting that results simply from a mistake in applying state election law — the circumstance that the brief contended is all that occurred in Hamilton County.
