As if Ohio hasn’t had enough pre-election litigation already this year, two new lawsuits were filed on Friday. A court might be tempted to say “too late” without even bothering to consider the merits of the claims. Yet each case presents allegations that, if true, are troublesome enough to deserve attention. One case, which has been filed directly in the Ohio Supreme Court, concerns the public display at each precinct of the vote counts from that precinct, just before those counts are transmitted to the county board of elections. The other case, scheduled for a hearing on Monday in the Cuyahoga County Court of Common Pleas, involves the right of each political party to send an observer to each precinct to watch the voting process. Although different in their specific details, both cases concern the openness of the voting process. Moreover, both cases involve claims that the Secretary of State’s Office has recently changed longstanding rules to make the voting process less open. In the supreme court case, the claim is that on October 4 the Secretary of State announced that the vote counts from each precinct no longer need to be publicly displayed at that precinct, even though section 3505.30 of the Ohio Revised Code explicitly requires it. In the Cuyahoga County case, the claim is that on November 1 the Secretary of State announced that political parties are no longer permitted to add new individuals to their amended lists of precinct observers, which are due on Monday, but are only permitted to substitute different individuals for those already identified on their original list, which was due October 27. Whatever the merits of these claims, it seems difficult to fault their timing. To be sure, the supreme court case could have been filed in October, rather than November, since it complains about an October 4 announcement. But litigation over Election Day procedures is almost as undesirable in October as November, and the Secretary of State would be a much better position to say “too late” if the announcement about no need for public displays of precinct results had been made months ago. Likewise, it seems hard to file a legal complaint about a November 1 announcement much before November 3, especially when (as in this situation) the Secretary of State actually issued a clarifying announcement on November 3 itself, which stated that, yes indeed, additional names would not be permitted on amended lists of observers. Ordinarily, I don’t like to reach a judgment about the merits of a legal case until I’ve had a chance to review the arguments submitted on behalf of both sides. (It’s the law professor in me, as well as my experience as a clerk to two different federal court judges.) I haven’t had a chance to see the Secretary of State’s responses to the claims in these two cases. In fact, I don’t even know if they have been filed yet. Moreover, I strongly believe that legal cases should be evaluated on their legal merits, which doesn’t necessarily correspond to the better policy position on the underlying issue. As I told the students in my Election Law class just this Friday—the same day these two new lawsuits were filed—felon disenfranchisement might not violate the federal Voting Rights Act even if it is bad policy. Yet, as I sit here on Sunday evening, with the polls opening on Tuesday morning in approximately 36 hours, I find myself reaching this judgment applicable to these two cases that is independent of whatever technical legal merits they might have, and without benefit of having read responses from the Secretary of State: for the purpose of the voting at polling places this Tuesday, without regard to what rules should exist for the future, both these cases would do better to be resolved in favor of greater openness rather than less. There is enough public distrust surrounding the voting process this year, with the potential for more developing depending upon how matters transpire on Tuesday, that it would be preferable to eliminate other possible bases for distrust. By permitting the political parties to have their statutorily authorized number of observers at polling places (as long as they submit the names of those individuals on their amended forms tomorrow), and by requiring the public display at each precinct of the vote count at that precinct, the electoral system would be more transparent and therefore more trustworthy. It would be best, of course, if this result could be reached without court order, by a settlement of these two lawsuits. One important lesson of the recent litigation over the state’s new voter identification rules was that the negotiated agreement that ended the litigation (at least until November 7) was a positive resolution, especially in comparison to the ongoing court battles that might have ensued. Therefore, it would be most welcome if the lawyers in these two new cases could learn from that experience and reach quick agreements that avoid the need to go to court over these two aspects of Election Day procedures. But if a settlement cannot be reached in either of these cases, then I’m prepared at this point to say that state-court orders that would increase the openness of these Election Day procedures would be a healthy, rather than disruptive, involvement of Ohio’s judiciary. Unlike the voter identification litigation, which occurred in federal court (and therefore did not permit the State of Ohio to run its own elections), a judicial decree in either of these two cases would be an instance of Ohio’s policing itself. It would seem difficult for the Secretary of State to be upset about the last-minute nature of this policing when it could have been avoided by that office issuing its announcements about Election Day procedures much earlier this year.
If nothing else, judicial orders to open up Election Day procedures in these two ways—by letting the political parties have their observers, and by publicly displaying the vote count at each precinct—minimize the likelihood of outcries afterwards that the election was stolen and there was no way to tell because the theft was hidden by the Secretary of State.