Monthly Archives: September 2008

TRO Issued in One of the Federal Cases on the Ohio Five Day Registration/Absentee Vote Window; One Federal Court Accuses Another of Acting “Unseemly” and with a “Lack of Comity”

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I have posted the judge’s 22 page order here requiring the Madison County Board of Elections to follow Ohio Secretary of State Brunner in allowing those who register to vote in the next five days to also cast an absentee ballot. The ruling is a temporary restraining order, but for our purposes this is the dispositive ruling. It requires taking a look at, among other factors, the likelihood of success on the merits. On that point, the trial court concluded: “Candidly, the underlying merits of issues are not even close. With regard to the interpretationof Ohio law, Defendant Brunner obviously determined the issue correctly.”
Perhaps of equal interest is the following that appears on page 3 of the opinion:

    After this action was filed, a later-filed case was presented to the United States District Court for the Southern District of Ohio. Southern District of Ohio Case No. 2:08-cv-00913. A motion to transfer venue to this Court was made in that case, arguing that the first filed rule should apply but that Court denied the motion. Although this Court had already set this matter for hearing on Plaintiffs’ motion for a temporary restraining order, the Southern District of Ohio Judge cancelled a previously scheduled hearing before that Court and moved the hearing earlier, apparently in an unseemly attempt to be able to rule first. That such lack of comity is unseemly understates.

Wow. And there’s also an opinion due from the Ohio Supreme Court on this same issue. This is like a Federal Courts nightmare final exam hypo.
I should note also, as I happen to be teaching in my Remedies class today, that TROs are not appealable. From the opinion, it is not clear if the judge also is issuing this as a preliminary injunction (which is appealable). If not, the losers would need to file a motion to dissolve the TRO and if that fails to seek an interlocutory appeal from the 6th circuit.
Longtime blog readers may recall in 2004 when two federal district court judges barred Ohio Republicans from issuing challenges to up to 35,000 voters at the polls. The day before election day, the 6th Circuit, in a split ruling, overturned those orders. The case went to Justice Stevens of the U.S. Supreme Court as Circuit Justice, who refused to stay the 6th Circuit order. (More details on pages 996-997 of this paper).
For some early press coverage, see here and here.
UPDATE: The Ohio Supreme Court, on a 4-3 vote agrees with the Secretary’s interpretation.
SECOND UPDATE: The second federal district court has ruled, abstaining on the 5 day window issue in light of the Ohio Supreme Court’s ruling, but granting the TRO to require election observers during the early voting period. I hear that there may be appeals of both federal rulings to the Sixth Circuit. See here.

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