[EL] Ohio suit to prevent Ohio legislator from voting as presidential elector: Article II issue?

[Mark Scarberry]

I wonder whether there could be a version of the Bush v. Gore Article II
issue here: If the state legislature allows a party to choose as a
candidate for presidential elector a person that is a member of the Ohio
General Assembly, then it isn't clear that the Ohio Constitution can
prevent it. The legislature has plenary power to determine the manner by
which the state appoints its electors.

Here are the only relevant Ohio statutes that I could find in a very brief
Westlaw search:

Ohio Rev. Code Ann. § 3513.11 (West):
"At the state convention of each major political party held in 1952, and in
each fourth year thereafter, persons shall be nominated as candidates for
election as presidential electors to be voted for at the succeeding general
election. Within five days after the holding of each such convention, the
chairman and secretary thereof shall certify in writing to the secretary of
state the names of all persons nominated at such convention as candidates
for election as presidential electors."

Ohio Rev. Code Ann. § 3513.111 (West):
"(A) Any major political party that does not hold a state convention under
section 3513.11 of the Revised Code shall nominate candidates for election
as presidential electors in accordance with this section.
"(B) In accordance with party rules, in 1992 and in each fourth year
thereafter, the executive committee of the state central committee of a
major political party described in division (A) of this section shall
nominate candidates for election as presidential electors to be voted for
at the general election to be held that year. The nomination of these
candidates shall occur no later than forty days prior to the general
election. Within five days after these candidates are nominated, the
chairman or secretary of the executive committee, or, in the absence of the
chairman or secretary, a member of the committee designated by a majority
of the other members of the committee, shall certify in writing to the
secretary of state the names of all persons so nominated."

Ohio Rev. Code Ann. § 3505.10 (West):
...
The names of candidates for electors of president and vice-president shall
not be placed on the ballot, but shall be certified to the secretary of
state as required by sections 3513.11 and 3513.257 of the Revised Code. A
vote for any candidates for president and vice-president shall be a vote
for the electors of those candidates whose names have been certified to the
secretary of state.
...



It's not clear to me that these statutes speak to who may be nominated to
be a presidential elector, so perhaps there is no direct conflict with the
Ohio Constitution.

I suppose it could be argued that the Ohio constitutional provision does
not interfere with the legislature's choice of the manner by which electors
are appointed but merely imposes an obligation on an appointed elector who
is a member of the General Assembly: resign from the Assembly seat or
resign from the position of elector.

Mark

Prof. Mark S. Scarberry
Pepperdine Univ. School of Law




*“Stark County residents sue to keep state Rep. Christina Hagan out of
Electoral College” <http://electionlawblog.org/?p=90075>*

Posted on December 17, 2016 1:46 pm <http://electionlawblog.org/?p=90075>
 by *Rick Hasen* <http://electionlawblog.org/?author=3>

News from Ohio:
<http://www.cleveland.com/court-justice/index.ssf/2016/12/stark_county_residents_file_co.html>

*Two Stark County residents have filed a complaint against Republican state
Rep. Christina Hagan, looking to keep her from voting for president as a
member of the Electoral College.*

*The complaint, filed in Stark County Court of Common Pleas by Andrew
Diliddo Jr. and Hagan’s former Democratic opponent, Deborah Cain, says if
Hagan were to participate as a presidential elector she would violate
the Ohio Constitution.*

*The state constitution prohibits a General Assembly member from serving as
a federal or other state official unless that person resigns from their
assembly seat, the complaint says.*

More here.
<http://www.chandralaw.com/blog/2016/12/chandra-law-clients-seek-restraining-order-against-ohio-state-rep-christina-hagan-saying-that-by-ser.shtml>
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