Judge Who Sided with Ohio SOS in Paper Ballot Authority Scuffle May Be in Violation of Judicial Conduct Code
ONB COLUMBUS: Franklin County Common Pleas Judge Eric Brown Tuesday dismissed on procedural grounds a case brought by the Union County Commissioners challenging the authority of Ohio Secretary of State Jennifer Brunner to force them and other counties who use touch screen voting machines to also provide a paper ballot to any voter who requests one on March 4th, the date of Ohio’s primary election.
The bellwether case, the first by an Ohio county that challenges Brunner’s authority as elections chief to force Ohio's 88 county boards of elections to have available by November elections paper ballots for any voter who asks for one, is of special interest to the 53 counties who will use electronic touch-screen voting machines as their primary system of voting in a fortnight.
IS JUDGE’S PRIOR WORK FOR BRUNNER A VIOLATION OF JUDICIAL CANNONS?
An issue that may have some bearing on the judge’s ruling today, one which has not yet been picked up by the mainstream media but which was disclosed to the OhioNews Bureau (ONB) of ePluribus Media, is whether Brown should have disqualified himself from even presiding in the case based on the previous magistrate work he performed for Brunner when she was Franklin County Common Pleas Court Judge, a position she relinquished before her term was up to run for SOS in 2006.
25 YEARS PROFESSIONAL LEGAL EXPERIENCE:
Magistrate, Franklin County Common Pleas Court
Appointed to serve as a judicial officer by the court's sixteen judges. Preside over trials, hearings, and criminal arraignments. Assigned to Judges Jennifer L. Brunner and Alan C. Travis. [Judge Eric Brown, Campaign Website Resume]
And although the case involves Union County, the fact that the Franklin County judge's wife, Marilyn, is a Democrat and a Franklin County Commissioner give naysayers to the decision more reason to question the motives of the judge. Commissioner Brown is one of the troika of officials who provide funding to the Franklin County Board of Elections.
Ohio judicial cannons of conduct obligate a judge be impartial, according to Chris Davey, a spokesman for the Supreme Court of Ohio. Davey does not comment on pending cases, but speaking on the broader issue of judicial conduct said judges are obligated to “read that code and any particular situation and decide for themselves on a case by case base whether they need to recuse themselves or not.”
Davey said affidavits of disqualifications are filed each year by litigants who think a judge should have recused themselves before or during a case.
For Brown to be challenged on not disclosing that he listed work for Brunner on his campaign website, Davey said a litigant would need to file an affidavit of disqualification with the Court. When such filings do occur, he said Chief Justice Thomas Moyer handles them personally and uses a broad body of case law to guide him. Davey said being perceived as being partial could justify such a ruling by Moyer that a judge had violated the judicial cannons. Davey said Moyer may take weeks to render his verdict in such matters.
He did say that the Court, when confronted with election matters with a pending date, does have an “expedited election matter” procedure that allows it to give priority to the matter by moving them up in its timetable.
On average, Davey said the Court receives about 120 affidavits of disqualification per year. He said the Court has not received one so far on this case.
UNION COUNTY HUDDLES TO CONSIDER ITS NEXT PLAY
The case Judge Brown dismissed today on procedural grounds, which was moved from Union County where it was first filed and where an judge there granted an injunction against Brunner’s forced march to provide paper ballots, may be appealed to Ohio’s 10th Court of Appeals, according to Union County Prosecutor David Phillips.
Speaking to the OhioNews Bureau of ePluribus Media today from his office in Union County, Phillips said Brown’s decision today was based on procedural issues, not the merits of the case, and that he and others were evaluating their legal options in filing an appeal or taking another tact to stop Brunner from raiding the county commissioner’s budget.
Brown, whose decision was based on the lack of standing of the Union County Commissioners to bring the suit, was quoted in published reports today saying “Unlike county agencies, boards of election are under the control of and answerable only to the secretary of state.” Brown’s decision said Brunner’s directive “applied to county boards of election, not county commissioners” and that because the Union County Board of Elections (UCBOE) did not join the commissioners in the lawsuit, he “lacked the authority to consider whether the directive violates state and federal law.”
Phillips said Brown’s decision fails to recognize that Brunner controls what the UCBOE does by virtue of her ability to break tie votes, which she did when the board, bipartisan in composition, tied 2-2 over asking the commissioners to spend a minimum of $68,000 to have on hand a minimum quantity (ten percent of the voters from the last election) of paper ballots for any voter who asked for one.
“Government can’t spend money that’s not appropriated or that it doesn’t have,” he said. “The commissions turned them (BOE) down because their request was not reasonable and necessary. We can quibble over the money, but (Brunner’s) directive anticipates an expenditure of funds” and all she can say is that she’ll “try to get it back.”
Phillips, who represented the commissioners as his role as county prosecutor, said for the county to comply with Brunner’s forced-spending directive, “the county has to have money in our coffers, and they don’t.” He added that the paper ballot request “exceeded funds appropriated” and that for the commissioners to comply, they would need to “move funds around, which they don’t have to move around.”
Taking issue with Brown’s ruling that the commissioners didn’t have standing to bring the lawsuit and that the BOE should have been a party to it, Phillips said “we don’t agree with that because the commissioners own it.”
Furthermore, Phillips said it is unrealistic to think the UCBOE could be a party to the lawsuit because the board would have another tie vote, and Brunner would break it in her favor. “To suggest the BOE is going to file, that’s not just going to happen,” he said, adding that there’s a fear factor at play here as well.
That fear came from a letter Brunner sent to his county BOE and the one in nearby Hardin County telling them that not complying with her directive was “in violation of their oath, and would be tantamount to insubordination.” Phillips said this could get them fired, which is why he called for protecting these workers in the suit first filed in Union County.
Brunner, who appoints members to Ohio’s 88 BOEs as the state’s chief elections office, did as much in her first two months on the job in 2007, when she wielded her authority to force resignations from the four members of the Cuyahoga County Board of Elections at the time. After some arm twisting and a couple weeks of political atmospherics from the chairman of the group, the four members, two Republicans and two Democrats, acceded to her demands.
Because of the fear of being fired, Phillips said he couldn’t get one member of his county BOE to testify at our hearing because they were afraid to loose their job. “I can’t find anyone willing to talk,” he said.
Taking what some say is a stand that needs to be taken now to chasten Brunner's election reform juggernaut, Phillips argues that Brunner’s declaration of switching to paper ballots from touch screen machines is a decision not of their choice but “by fiat” by her. The decision makers who choose which system of voting a county will use, Phillips said, is not Brunner, but "the commissioners, the BOE and the electorate."
Phillips also takes issue with a member of Brunner’s staff who did testify in the hearing held in Union County who testified under oath that the paper ballot is a so-called “emergency ballot.”
“That’s not so,” he said of Pat Wolfe's testimony. “It’s to be voted that day, counted that night," Phillips said of what the state’s elections administrator said on cross examination. “By her directive (Brunner’s), she has ordered us to run two systems. We’ve been happy with seven elections, and the central optical scan, which we’ve never chosen, is for absentee and provisional votes; but we’ve never picked it for anything else.”
Phillips also faults Brunner for dragging her feet on making her decision on paper ballots in the first place. With time ticking away before the arrival of Ohio’s primary on March 4th, the issue of lack of time has played to Brunner’s advantage already. Federal Judge Kathleen O’Malley recently ruled against the Ohio ACLU in a case they brought against Brunner challenging her use of central-count optical ballots, a decision that Brunner made possible by again breaking a 2-2 tie vote. Not enough time may again work to Brunner’s advantage should Phillips and company appeal their case the 10th Court of Appeals, based in Franklin County.
Phillips says it’s the role of the commissioners, not the UCBOE to spend money. He said the state's first Democratic SOS in 16 years decision to force BOE’s to make the radical changes she wants them to make is telling citizens that “we don’t trust 30 million in voting equipment; not one hint of our system every being wrong or the result of fraud; but instead we’re going to trust cardboard boxes as being secure.”
Referring to the statement by the SOS’s Wolfe at his hearing that placing paper ballots for safe keeping in card board boxes is secure, Phillips said he thought the “voting public needs to know that.”
He further took aim at Brunner over the component of her directive that called for each BOE to have paper ballots on hand equal to ten percent of the number of voters in the last election. “That figure is arbitrary,” he said, noting there’s not one word in Ohio election law that justifies it. In fact, Phillips says the reality could be that come Election Day every voter will ask for a paper ballot, which effectively means Brunner’s directive is really to have paper ballots equal to 100 percent of voters. And that cost far more than the funds the commissioners already say that don't have.
He also that if paper ballots can’t be printed on demand, as Brunner casually says can be done, “there will be lines.” And lines, one of the nightmares the nation remembers from the presidential election in 2004, is what all parties involved want to avoid.
ASK IF YOU KNOW TO ASK, BUT DON'T ASK US TO TELL YOU TO ASK
He also chided Brunner for her lack of any voter education program about the availability of paper ballots. He thought it interesting that for a chief elections officer who says touch screen machines are both untrustworthy and vulnerable and that paper ballots must therefore be available, it was curious that she has no voter education campaign to tell voters to ask for a paper ballot.
If voters somehow know to ask for a paper ballot, they should be given one. But although she has repeated tells mainstream media reporters that those voters who know to ask for a paper ballot will receive one, she fails to explain why, if its so important to have them, why she has not better performed her public duty to inform Ohioans about their voting options by proactively engaging in a statewide campaign to inform them that they should ask for one.
Moreover, the claim that the more people who vote by absentee ballot will reduce those voting at precincts on election is true, the reality is that an absentee ballot is the same ballot a voter would ask for in person at a polling place. So either way, local boards of elections will foot the bill regardless.
And while the Help America Vote Act says a voter education effort should be made when making the kinds of radical voting reforms Brunner is plowing ahead with, despite the mounting opposition to her plans she seems to be ignoring, the law is vague as to what constitutes such an effort. Election experts ONB has spoken with say a case could be made that an effort as meager as a postcard could argued to satisfy that requirement. But Brunner hasn’t even sent out a postcard, nor directed BOEs to do so.
”I’m disappointed we can’t get to the merits. It’s important to Ohio’s election officials, to commissioners and the voting public at large. Because of the timing, we may not be able to get to the merits prior to the primary. That will cost Ohio taxpayers untold tens of thousand of dollars. [David Phillips, Union County Prosecutor]
T-MINUS TWO WEEKS AND COUNTING TO ELECTION DAY
The massive and radical voting reforms Brunner has promoted in the wake of a $1.7 million study she commissioned last fall that poked holes in Ohio’s voting systems seem to be having the opposite effect of her campaign promise to assure voters their vote will be counted.
Instead of building confidence among citizens, Brunner spell-mell changes are producing growing a growing chorus of voices who are rallying against Brunner for force-feeding them reforms they say are unnecessary, unwanted and cost money they say they don’t have and that she doesn’t have a source to reimburse them from.
With 46 precincts in play on election day in Union County, Phillips hopes for the best. And whether he has enough time or a court willing to listen to the issues he considers meritorious is a matter of speculation at this point, just two weeks away from what most election watchers expect to be a large turnout, given the enthusiasm for the race for president between Sen. Barack Obama and Sen. Hillary Clinton.
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.
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