Continuing the "Bush v. Gore" as precedent discussion from the
(coincidental to a Ohio story) 6th Circuit... one might well note that
Bush v. Gore's holding can only be supported by the recognition that
candidates can bring election lawsuits for which there is no obvious
standing. (i.e., how else could plaintiff Bush vindicate Floridian
voters' equal protection rights?)

----- Original Message -----
From: rick.hasen@lls.edu
Date: Friday, April 28, 2006 11:12 am
Subject: Fwd: complaint in Schmidt v. McEwen

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 
Virginiaand, 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'sCincinnati 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 
(accordingto the story) under Ohio law. Schmidt will apparently 
dismiss the law
suit (and perhaps already has as I write this), as being moot, but 
askedthe 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'sresidence. 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 
referencesto 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