I don’t envy the Hamilton County Board of Elections. This morning they have a hearing before Judge Susan Dlott of the U.S. District Court for the Southern District of Ohio at which they are to explain why they should not be held in contempt of court for failing to follow a court order. Last week, Judge Dlott issued an order directing the Board of Elections to count over 150 disputed ballots in a local election for juvenile judge. The problem is that both the Ohio Supreme Court and Secretary of State say that the ballots cannot be counted under Ohio law.
Here’s some background. The race for juvenile judge in Hamilton County is very close. After the election day count, Republican John Williams led Democrat Tracie Hunter by a mere 23 votes. But there was a problem. Due to mistakes by election officials, this count included 27 provisional ballots that had been cast at the Board of Elections headquarters for the wrong precinct. Board officials gave eligible voters the wrong ballots, but these were counted anyway — and there were just enough to cast the outcome of the election in doubt.
The legal controversy has centered on another set of provisional ballots — over 150 — that were cast at local polling places, but at the wrong precinct. (In Ohio, voters for more than one precinct may vote at a single physical location, albeit with different ballots and on different machines.) These ballots were not counted, and litigation ensued.
Hunter’s camp alleges that the Board of Elections must count the additional set of provisional ballots. To include one set of faulty ballots but not the other would violate the Equal Protection Clause, as applied to vote-counting procedures under Bush v. Gore. Specifically, they argue that the failure to vote in the proper precinct was due, at least in part, to poll worker error, and not mistakes by the voters. Therefore, to include one set but not the other is to treat the ballots is unconstitutional. As Judge Dlott explained:
To treat these groups of provisional ballots differently when they are the same for the purposes of being improperly cast due to poll worker error violates voters’ right to equal protection under the law. Because the Board has already counted certain provisional ballots cast in the wrong precinct due to poll worker error, the remaining ballots that fall in the same category must be counted.
A federal judge may see it this way, but Ohio officials do not — at least not now. Before she had left office, Ohio Secretary of State Jennifer Brunner had ordered the Board of Elections to count over 100 of the disputed ballots. This order was rescinded by new Secretary of State John Husted. Lest one think this is all about partisan politics (Brunner is a Democrat; Husted a Republican), Husted’s action came on the heels of an Ohio Supreme Court decision rejecting Brunner’s arguments and holding that the additional ballots may not be counted under Ohio law and need not be counted under the Equal Protection Clause.
So you can see why the Hamilton County Board of Elections is in a tight spot. The Ohio Secretary of State and Ohio Supreme Court say they cannot count the additional ballots, but a federal district court says they must. There’s no question that federal law trumps state law under the Supremacy Clause, but does this mean a federal district court necessarily trumps the state supreme court? The Ohio Supreme Court does not think so.
“It has long been settled that the Supremacy Clause binds state courts to decisions of the United States Supreme Court on questions of federal statutory and constitutional law.” State v. Burnett (2001), 93 Ohio St.3d 419, 422, 755 N.E.2d 857. But as for decisions of lower federal courts, this court has observed that “we are reluctant to abandon our role in the system of federalism created by the United States Constitution until the United States Supreme Court directs us otherwise. Id. at 424. Thus, “we are not bound by rulings on federal statutory or constitutional law made by a federal court other than the United States Supreme Court. We will, however, accord those decisions some persuasive weight.”
This sets up the possibility that Board officials could become subject to conflicting court orders. It’s a “highly complicated situation,” commented on board member, in a bit of understatement. If neither court relents, and the district court is not overturned by the Sixth Circuit, the Board could be in a bit of a pickle. As Ohio State’s Edward Foley notes here, the conflict may cause the U.S. Supreme Court to revisit Bush v. Gore (if not also Martin v. Hunter’s Lessee).
UPDATE: Earlier today, before the contempt hearing could take place, the U.S. Court of Appeals for the Sixth Circuit granted an emergency stay of the district court’s order and related proceedings pending the resolution of appeals in the case. “Given the conflicting decisions in this case and the difficult position in which the Board finds itself, we conclude that a stay should issue pending the resolution of these appeals,” the court explained. The Sixth Circuit will hear oral argument on Thursday. (Hat tip: ElectionLaw@Moritz.)