message from Michael Solimine:

-----Original Message-----

From:  "Solimine, Michael (solimime)" <SOLIMIME@UCMAIL.UC.EDU>
Subj:  complaint in Schmidt v. McEwen
Date:  Fri Apr 28, 2006 11:07 am
Size:  2K
To:  election-law@majordomo.lls.edu
cc:  rick.hasen@lls.edu

Election law observers may be interested in following the acrimonious
Republican primary battle between U.S. Representative Jean Schmidt and
Bob McEwen in Ohio. Schmidt (represented by prominent Democratic
attorney Stan Chesley, no less) sued Bob McEwen on Tuesday, April 25, in
federal court in Cincinnati (S.D. Ohio, case no. 06CV238)(Beckwith,
J.).It sought to prevent McEwen from voting in the May 2 primary.

Briefly, the suit asserted that McEwen is really a resident of Virginia
and, according to the suit, is not eligible to vote in Ohio. McEwen
asserts that he is a resident of Ohio. Amusingly, a story in Thursday's
Cincinnati Enquirer said that McEwen voted on Tuesday (coincidentally,
or not, the same day suit was filed), via an in-person absentee ballot,
an oxymoron-sounding procedure that is nonetheless permitted (according
to the story) under Ohio law. Schmidt will apparently dismiss the law
suit (and perhaps already has as I write this), as being moot, but asked
the Ohio Election Commission to further investigate. Then on Thursday,
the Ohio Election Commission heard several complaints filed by both
campaigns against the other, only one of which was the issue of McEwen's
residence. The OEC then held yesterday that there was no probable cause
to investigate the residence issue.

A couple of comments about the suit. Does Schmidt have standing to
pursue it? The only reference in the complaint, as I see it, on this
issue is paragraph 24, which states that "As a candidate in the May 2
Republican primary, Schmidt has a unique stake in McEwen's eligibility
to cast a ballot, whether regular or provisional, in that primary
election." Does this supply standing? Curiously, there are no references
to Schmidt being a voter, which would seem to supply standing. There are
cases that hold that status as a competitor can give standing, e.g., FCC
v. Sanders Bros. Radio Station (1940), but I'm not sure they apply here.

A second and probably related issue is the nature of Schmidt's cause of
action. The complaint asserts that the case arises under federal law
(paragraph 5), and that her cause of action apparently comes from HAVA
and other "applicable laws." (paragraph 4) I'm not sure how HAVA and
other federal election laws speak to this issue, or whether they give
Schmidt express or implied rights of action. 

Michael E. Solimine
Donald P. Klekamp Professor of Law
University of Cincinnati College of Law