“Whether we vote 35 or 28 days, by mail or in person this November, elected officials and not federal judges should be making Ohio law.” –Ohio Secretary of State Jon Husted
As soon as I read this statement issued by current Ohio Secretary of State Jon Husted, I couldn’t get the Talking Heads song, “Once in a Lifetime,” out of my head. “How did I get here – same as it ever was – letting the days go by, letting the water hold me down . . .” He once asked me if I missed “this office,” to which I succinctly replied, “Nope.”
It’s not that I didn’t love what I did, or love working with the most talented staff anyone could imagine, or love serving Ohioans—it was the drama, the politics, the death threats in 2008, the nonsense, the federal and state court battles and the partisan fighting—all knowing that if I didn’t hold the line, keeping a steady focus on the rights of every voter, a lot of people could be hurt. I view voting as the most important expression of speech in a democracy.
After living through the 2008 presidential election, my staff and I in the Ohio Secretary of State’s office held public hearings and workshops on how we could improve Ohio’s election laws and processes. Many from all walks of election interest and all parts of Ohio and the U.S. participated, and we developed a bipartisan proposal for legislative change from our efforts. Our team of state staff and local election officials found that a “bipartisan” proposal is not anything close to “Teflon” when presented to the Ohio General Assembly for passage. Until the end of my term in January 2011, the Ohio General Assembly attempted to pass an election law reform bill in one form or another, based in part on our proposal, with a Democratic-controlled house and Republican-controlled Senate. Senator Bill Seitz (R-Cincinnati) and I , an unlikely pair, even came to an agreement in 2010 that we thought was for both sides, in what we called the “Au Bon Pain Summit.” At an hour and a half meeting with staffers from both houses and some of my staff, held at—you guessed it—Au Bon Pain restaurant in downtown Columbus, we hammered out a compromise that the legislature never passed before I left office, despite both of our efforts.
Before that meeting I had become convinced that, with all the controversy over “Golden Week,” this period of overlap between the close of voter registration and the start of absentee voting, was not all it was cracked up to be. The controversy about “Golden Week” was so vitriolic and the use of it in 2008 (less than 14,000 voters in a state of then almost 9 million registered voters) so paltry, that eliminating it seemed like a decent compromise. It would have ended the controversy, confusion and unfounded fears—all things that I was concerned actually undermined voting and could suppress turnout.
When Democrats lost control of the Ohio House in 2010, along with the governorship and all statewide offices, the bipartisan proposal from my administration was more than dead. From its ashes rose not a phoenix but some other form of creature known as H.B. 194. Many of the nonpartisan, election administration changes that, frankly, no one except election officials really cared about from our bipartisan proposal, were in the bill. But it was in H.B. 194 that the legislature made further reductions of early voting and restricted the reserved powers of initiative and referendum, among other things, that changed the bipartisan proposal to being, well, quite an “unlikeness” of its former self.
A small group of attorneys and activists (and I mean small) decided to try to refer by referendum H.B. 194 to the voters. I drafted the petition, twice, after it was rejected by AG Dewine but later approved, and our group became Fair Elections Ohio. We were aided by the Obama presidential campaign to get the petition to the ballot. Our effort ultimately succeeded, and it was certified for the ballot for 2012.
But the Ohio legislature didn’t appear to have the stomach to send the law to the voters in a presidential election year. For the first time in 100 years, since initiative and referendum were placed in the Ohio Constitution at the 1912 Constitutional Convention, the Ohio General Assembly repealed a law certified for a statewide referendum vote. Secretary Husted unilaterally took the issue from the ballot, refusing to send it to the Ohio Ballot Board for ballot language drafting and review. H.B. 194 was never seen again until its remains were chopped into pieces and parts, much of it regurgitated and cooked piece-by-piece, in time for the 2014 statewide election. Meanwhile, the 2012 election resulted in nearly the same voting rules as had been in place in 2006, 2008 and 2010.
As a brief aside, I should point out at this juncture, that the 2005 adoption of “no fault” absentee voting that began to be used in 2006 was not generally seen at the time a response to the long lines of 2004. It was a response to the “Reform Ohio Now Proposal” that was certified for the ballot in 2005 that would have required no-fault absentee voting in the state constitution, (but with postage paid by the government.) The political wisdom at the time was that, if one or more of the four “Reform Ohio Now” proposals could be voted down, the rest of them were more likely to go over the cliff with them, especially an overhaul of Ohio’s redistricting and reapportionment process.
Fast forward to the federal litigation of 2014. When I read U.S. federal Judge Economus’ decision in the case brought this year by the NAACP and the ACLU, I saw that our fight on H.B. 194 to maintain consistency in Ohio’s voting laws actually permitted minority and low-income voters to establish voting patterns that, when taken away, resulted in unconstitutional and unlawful harm.
I say “unlawful”, because Judge Economus found Secretary Husted had violated the federal Voting Rights Act with his directive(s) limiting evening and weekend voting through requirements for uniformity of voting hours among the state’s 88 counties. Being found in violation of federal voting laws (there are federal elections every two years) was definitely not a good thing for a Secretary of State to have on his or her record, especially if they planned to be around in Ohio politics for a while.
In my view, Judge Economus left Secretary Husted with no alternative but to appeal until the cows come home, which he did with the help of Attorney General Mike Dewine. The legal maneuvers were creative. At the same time that they sought a full hearing by the 6th Circuit Court of Appeals (a 3-judge panel had already affirmed Judge Economus’ decision), they looked to the U.S. Supreme Court for a stay of the trial court’s now-affirmed decision. (They had already been denied a stay by the 3-judge panel, and there was no guarantee that they could get it in time to stop early voting on September 30th with a full 6th Circuit panel.)
When I served as Secretary of State, we were faced with seeking an expedited review of a full panel decision by the 6th Circuit court. Our assigned justice to the 6th Circuit at that time was Justice John Paul Stevens. The justice was “getting up there” in age, and we knew we had to file it before he went to bed at 8:30 p.m. We did, and SCOTUS took the case, within days deciding unanimously that the Ohio Republican Party had no standing, dismissing the case.
Justice Elena Kagan now is responsible for the 6th Circuit. She could have denied the motion on her own but chose to allow the full court to determine the matter of the stay. The order staying Judge Economus’ decision reads simply as follows:
The application for stay presented to Justice Kagan and by her referred to the Court is granted, and the district court’s September 4, 2014 order granting a preliminary injunction is stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application for stay.
My focus in 2014 is to serve as a judge in the Tenth District Court of Appeals. Looking at the state of affairs now, I figure that’s the place I can do the most good for Ohioans in elective public service. In the fun but arduous process of campaigning, two days before that simple decree of the nation’s highest court, I met with Somali voters. One woman said solemnly to me, “I always vote on the first day of early voting. I take my kids to school and go right to the early voting location. I will be there on Tuesday.” No, she won’t. The confusion continues, and for what? I just can’t get that Talking Heads song out of my head.
Jennifer Brunner is Ohio’s 52nd Secretary of State, the first and only woman to be elected to that position and the fifth woman in the history of Ohio (since 1803) to be elected to statewide executive elected office in her own right She is a candidate for the Tenth District Court of Appeals located in Franklin County against a Kasich-appointee to that seat
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