The Absence of the Chief Justice from the Bench and the Potential for Post-Election Litigation

A.P. reports here that the Chief Justice was not on the bench today, as he had originally planned to be, following cancer surgery. On NPR, Nina Totenberg was asked how, if at all, this could affect any post-election litigation that might make it to the Supreme Court. I don't have a transcript of Totenberg's remarks, but she indicated a belief that the Chief Justice could participate in deciding any such case from home if necessary.

Breaking News from Ohio: Federal Court Limits Challengers at Ohio Polls

The order granting the TRO is here. A snippet from a discussion of the legal analysis:

Ohio argues that in light of the huge numbers of newly registered voters and reports of fraudulent registration, a system allowing private challengers to question voter eligibility is a critical process. The Supreme Court has instructed that in pursuing important state interests, if there are other, reasonable ways to achieve those interests with a lesser burden on constitutionally protected activity “a State may not choose the way of greater interference. If it acts at all, it must choose less drastic means.” Dunn v. Blumstein, 405 U.S. 330, 343 (1972) (quoting Shelton v. Tucker, 364 U.S. 479, 488 (1960) (internal quotations marks omitted).
In this case, the portion of § 3505.20 allowing private challengers to challenge the eligibility of a person offering to vote at a precinct is not narrowly tailored to serve Ohio’s compelling interest in preventing voter fraud. Under the statute, bipartisan election judges and any elector then lawfully in the polling place may challenge the eligibility of any person offering to vote at that precinct. Election judges are seasoned, experienced workers in the electoral process. Defendant Burke testified that he and his co-chair of the Hamilton County Board of Elections were quite concerned when they saw that so many challengers had registered to be present on election day and were likewise concerned with the impact of several hundred lawyers attempting to take over the challenge process from the poll workers who are experienced in conducting that process. Defendant Director of the Hamilton County Board of Elections John Williams also testified that he is concerned about the election, understands that there could be confusion on Election Day with so many challengers, and trusts the poll workers to do a good job. Further, Defendant Blackwell’s recommendation that the challengers be removed from the polls strongly undermines any argument that having these challengers at the polls is narrowly tailored to serve a compelling state interest. Defendant Blackwell’s recommendation highlights the fact that the chief elections official of Ohio believes that fair elections can occur without the challenge process.9 The conflict between Secretary of State Blackwell and Attorney General Petro indicates that even the two top officials responsible for enforcement of election laws disagree over the manner in which to proceed. How can the average election official or inexperienced challenger be expected to understand the challenge process if the two top election officials cannot? Further, there are other protections in place to prevent election fraud. As registrations are
received, the Board of Elections processes them and works to ensure that they are not fraudulent.
The Board of Elections may conduct investigations, summon witnesses, and take testimony under oath regarding the registration of any voter. Ohio Rev. Code § 3503.25. Defendant Burke testified that the Board had, in fact, received registration cards of dubious authenticity, and the suspect registration cards either did not result in voter registrations or were registered and then cancelled. Further, any qualified elector of the county may challenge the right to vote of any
registered elector to vote and the challenge will be considered by the Board of Elections at a hearing.10 Ohio Rev. Code § 3503.24.
In this situation, the presence and actions of challengers serves the same interest as that of the election judges except that the presence and actions of the former poses an unacceptable risk of impeding the work of the election judges. Since the election judges are the individuals who are knowledgeable and experienced in the process of identifying potential ineligible voters, asking them the relevant questions, and making determinations, disruption of this system by over 1100 lawyers who have no experience in the process cannot be said to be narrowly tailored to serve a compelling state interest in preventing voter fraud.
Indeed, because the evidence does not indicate that the presence of additional challengers would serve Ohio’s interest in preventing voter fraud better than would the system of election judges without the additional challengers, the practice as applied here could not withstand even intermediate scrutiny. Orr v. Orr, 440 U.S. 268, 282 (1979) (explaining that to survive intermediate scrutiny, practice must further state’s interest better than would its absence.) Because the Court concludes that Plaintiffs have shown a substantial likelihood of success on the merits on the ground that the application of Ohio’s statute allowing challengers at polling places is unconstitutional, the Court declines to reach the other grounds for relief raised by Plaintiffs.

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Professor Rick Hasen 
Loyola Law School 
919 South Albany Street 
Los Angeles, CA  90015-0019 
(213)736-1466 - voice 
(213)380-3769 - fax 
rick.hasen@lls.edu 
http://www.lls.edu/academics/faculty/hasen.html 
http://electionlawblog.org