High Court Orders Ohio SOS to Testify Under Oath

OhioNews Bureau

ONB COLUMBUS: From her first day on the job in January 2007 as Ohio Secretary of State, Jennifer Brunner has acted as if she was bullet proof. To those who found themselves at odds with her proposals or directives in one way or another, she has given no quarter in using the authority of her position as chief election officer more as a political bludgeon than a tool to heal the divides that have opened between her, local boards of elections and the officials that run them and other stakeholders in Ohio's system of elections.

Several of Brunner's directives, which she says must be followed because they have the force of law even though they are not passed by the Ohio legislature, have become extremely controversial, especially as they relate to how Ohio elections are run and by whom.

At issue now is Brunner’s decision to not reappoint a veteran of the Summit County Board of Elections, Alex Arshinkoff, a powerful Republican who is known for his hardball style of controlling local politics.

And if forcing her to testify herself wasn’t enough of a setback to her argument that a staff member serve as her stand-in, the court unleashed even more hungry hounds when it declined to limit what she might be asked about, as Carol Biliczky reported in the Akron Beacon Journal.

Furthermore, the court, by a 4-3 decision on Wednesday, also allowed her deposition to be video taped. Brunner was represented by lawyers provided to her by Ohio Attorney General Marc Dann, whose office represents state agencies and officials. They argued that her testimony should not be video taped because it could become "campaign advertising fodder" in the future, according to a published report.

The Ohio GOP jumped on the efforts by Dann to seal the video taped deposition, saying the rambunctious attorney who many thought was Ohio's version of Eliot Spitzer when he was Attorney General of New York, pointed to his inaugural speech in which he said he would insist on "transparency and accountability" in all government institutions.


About three weeks ago, Brunner said Arshinkoff wasn’t “competent” to be reappointed and proceeded to unseat him from a position he had held for 30 years. The Summit County GOP then recommended Brian Daley, a retired businessman and former Hudson City Council president who lost a bid for reelection last fall, to replace Arshinkoff.

Brunner then declined to appoint Daley, saying he ''suffered from some of the same characteristics as what concerned me about Arshinkoff'' and then called him a bully because she had “reason to believe” he likes to “intimidate others with threats in a loud voice.” '

'This is an objective determination to be made by the secretary of state, not a factual conclusion that must be proven to the acceptance of all. It has nothing to do with Daley's background or actual competence, only whether the secretary of state had reason to believe he could not competently serve.'' [Akron Beacon Journal, From Brunner's court filing]

She then named a Republican replacement who has been working with state Sen. Kevin Coughlin, a term-limited state senator who aspires to higher office (maybe secretary of state) and who has been in a fierce battle to gain control of the county party away from Arshinkoff. The county GOP, challenging her decision, asked the supreme court to appoint Daley to the seat.


Now that Brunner is being forced to testify under oath, an interesting wrinkle comes in who will be administering the deposition on behalf of the Summit County GOP. That attorney is none other than Timothy Grendell, an imposing Republican state senator who lost to Betty Montgomery in the 2006 party primary for Attorney General.

Grendell is a tough-nosed, irascible member of the majority caucus of the Ohio Senate who has earned a reputation as a politician who while generally being a team player, has his maverick moments.

”'If someone is competent, she has to go with the recommendation. The fact that he (Arshinkoff) may have some political foes or that there may have been a bad editorial written about him doesn't rise to the level of incompetence.'' [Akron Beacon Journal]


In a post Tuesday by Dan Tokaji to his blog on election matters at Election Law @ Moritz, the nationally known and well-respected attorney said the court’s decision to force Brunner to testify under oath is a “particularly significant issue to watch in Ohio, given the allegations of partisanship surrounding Brunner’s Republican predecessor, Ken Blackwell.”

Tokaji, who Brunner is known to not be fond of, said in a previous post to his blog about what could go wrong with Ohio’s primary (held on March 4th) that “if in fact Brunner has moved to remove Damschroder because of his testimony in the ACLU case…that would be a terrible abuse of the Secretary of State's authority -- one that would give justification to Republican complaints about her, comparable to Democrats' justifiable complaints about Blackwell in 2004.”

”If Brunner is in fact using her power vindictively, to retaliate against local election officials who disagree with her, it can be expected to further erode public confidence in the state's administration of elections.” [Tokaji, Election Law @ Moritz]


In her first 15 months in office, Brunner’s tour de force as Ohio’s first Democratic elections chief in 16 years has been marked by what many are saying is an unnecessary use of her authority against those who don’t fall into lock-step with her decisions.

One of the state’s strongest voices, The Columbus Dispatch, one of the mainstream media papers that endorsed her in 2006 when she ran for office, wrote a blistering editorial last Sunday that took Brunner apart, issue by issue, on both the substance and style of her decisions as they related to Ohio's March 4th primary.

”The lesson for Ohio officials at the state and county levels is that the massive changes proposed by Brunner are irrational and pose a potential risk for errors, because poll workers would be using new equipment and procedures.

“While Brunner has failed to undermine the public's confidence in electronic voting, she has interfered with operations in Franklin County and elsewhere.

“Not only does Brunner want to force changes on elections boards, but her actions also indicate unwillingness to tolerate any dissent. The first Democratic secretary of state in 16 years has refused to reappoint or sought to oust nine county elections officials, including Franklin County's Matthew Damschroder. All of them, save two Democrats on the Cuyahoga County board, are Republicans. Her heavy-handed tactics expose her to the kind of accusations of partisanship that were heaped on her predecessor, Republican J. Kenneth Blackwell.

“She appears to be ready to move against any official who disagrees with her…Suppressing or ousting board members who challenge changes is foolish. A ship's captain who muzzles or throws overboard the crew members who warn of icebergs is on a course for disaster.” [Columbus Dispatch, Sunday Editorial]

John Michael Spinelli is a former Ohio Statehouse government and political reporter and business columnist. He now serves as the OhioNews Bureau Chief for ePluribus Media Journal. Find ONB archives here.

If readers have a news tip or story idea about Ohio politics or government, contact the OhioNews Bureau at: ohionews@epluribusmedia.org

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