Although votes were cast on November, the race for juvenile court judge in Hamilton County, Ohio, has yet to be resolved. At last count, one candidate led by 23 votes, but a slightly higher number of miscast ballots were counted, and several hundred more remain in dispute. As I noted here and here, the election has spawned litigation in both federal and state court raising both state law and federal equal protection claims.
Last week, the U.S. Court of Appeals for the Sixth Circuit weighed in with Hunter v. Hamilton Country Board of Elections, concluding 2-1 that the Board’s decision to count some miscast ballots but not others may have violated 14th Amendment’s Equal Protection Clause as applied to ballot counting in Bush v. Gore. As OSU’s Ned Foley explains here, this decision is likely “the most significant application of Bush v. Gore in the decade since that precedent was decided,” and (if not overturned or modified by the Sixth Circuit en banc or the Supreme Court) could influence how other courts handle future election challenges, particularly those involving challenges to election official decisions to count some ballots but not others.
One of the central issues in the case is whether the Hamilton County Board of Elections offered a sufficient justification for deciding to count some ballots cast at the wrong precinct due to errors by election officials, but not others. As Judge Moore’s majority opinion explained, “the Board exercised discretion, without a uniform standard to apply, in determining whether to count miscast ballots due to poll-worker error that otherwise would have been invalid under state law.” Judge Rogers’ concurring opinion did not subscribe to this analysis and urged greater deference to state officials. As Foley notes, this opinion offers an alternative approach some courts may elect to follow, and a further reason this case could prove important should we face yet-another round of election litigation next year.
Beyond the court’s application of Bush v. Gore, the case raised the issue of how state and federal courts should address potentially competing interpretations of federal law. In an earlier decision, the Ohio Supreme Court, in clarifying Ohio’s rules governing provisional ballots, was fairly dismissive of the federal constitutional claims and asserted that Ohio courts were not bound by federal district court interpretations of federal law. This earned a slight rebuke from the Hunter majority: “It is not for the state court . . . to resolve the equal-protection claim previously filed and still pending in federal court.” These issues, the Sixth Circuit held, “were not properly before the Ohio Supreme Court because they were not presented there.” As a consequence, there was no basis for the Sixth Circuit to defer to the Ohio Supreme Court’s resolution of the issue.
Judge Rogers, concurring in the judgment, viewed the Ohio Supreme Court decision somewhat differently. Noting that the Ohio Supreme Court had sought to explain how local election officials could comply with the relevant district court order, he wrote:
This was a commendable exercise of discretion in a constitutional system where federal and state courts are independent of each other. State courts and lower federal courts need not, and should strive not to be, in conflict. The law and the public interest support tailoring of federal equitable relief so as to conform as closely as possible to the Ohio Supreme Court’s interpretation of Ohio election law.
While the state courts cannot control the enforcement of a federal court order enforcing federal law, the state courts may properly direct state officials responsible for carrying out the order on the choice of options consistent with the order. This is what the Ohio Supreme Court has done, and it appears to have done so in a thoughtful and deferential manner.
For these reasons, Judge Rogers urged the district court to make a greater effort to conform any further ordered relief to the Ohio Supreme Court’s resolution of the relevant state law claims.
[NOTE: I have corrected an error in the title and the post. I wrote “probate judge” when I should have written “juvenile court judge.”]