Legal Commentary

Hamilton County Snafu ? The Sixth Circuit Weighs In

By Jonathan H. Adler

This afternoon the U.S. Court of Appeals for the Sixth Circuit weighed in on the Hamilton County election snafu that produced potentially conflicting state and federal court decisions. In Hunter v. Hamilton Country Board of Elections the court largely upheld the federal district?s ruling requiring the Board of Elections to investigate whether poll worker error caused the erroneous rejection of provisional ballots, but largely rejected the district court?s January order that would have required the Board of Elections to count additional ballots. Judge Moore wrote the opinion for the court, joined by Judge Cole.  Judge Rogers wrote an opinion concurring in the judgment.

I haven?t had time yet to fully digest the ruling, but the court?s resolution seems sensible to me (though I might prefer Judge Rogers? approach to the Judge Moore?s).  I?ve placed an excerpt below the fold.

From the conclusion:

We conclude that the district court did not abuse its discretion in granting the November 22 preliminary injunction ordering the Board to ?immediately begin an investigation into whether poll worker error contributed to the rejection of the 849 provisional ballots now in issue and include in the recount of the race for Hamilton County Juvenile Court Judge any provisional ballots improperly cast for reasons attributable to poll worker error.? We also conclude that Plaintiffs have shown a strong likelihood of success on the merits of their equal-protection claim and that the balance of harms favors Plaintiffs.

We also conclude that it was premature for the district court to identify which ballots were miscast due to poll-worker error. Although there is evidence to support the district court?s findings, and indeed some portions of the January 12 order reflect the unanimous Board votes to count the 7 admitted poll-worker error ballots and the 9 correct-precinct ballots, we conclude that it was premature to make the findings when the Board and Williams lacked the opportunity to present their own evidence and arguments in opposition. As a result, we VACATE the portion of the district court?s January 12 order directing the Board to count the 149 ballots, the 7 ballots, and the 9 ballots. We VACATE AS MOOT the portion of the district court?s January 12, 2011 order enjoining the Board from complying with Directive 2011-04. That Directive has, in effect, been superseded by Directive 2011-05. With respect to the NEOCH [Northeast Ohio Coalition for the Homeless] consent decree, all parties agree that the consent decree remains and should be followed. Because the parties do not contest it, we AFFIRM the district court?s January 12, 2011 order that the Board ?investigate all ballots subject to the NEOCH Consent Decree for poll worker error and count those ballots as required by that Consent Decree.? We leave to the district court in the first instance, applying the uniformity requirement of Bush v. Gore, to direct the Board how to proceed regarding the 9 ballots unanimously determined by the Board to have been cast in the correct precinct, the 7 ballots unanimously determined by the Board to have been miscast because of poll-worker error, the 269 ballots cast in the correct location but wrong precinct in which the determination of poll-worker error remains disputed, and, pursuant to the NEOCH Consent Decree, the NEOCH ballots.

Full post as published by The Volokh Conspiracy on January 27, 2011 (boomark / email).