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”

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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“New Voices in Politics: Justice Marshall’s Jurisprudence on Law and Politics”

Beth Garrett has posted this draft on SSRN (forthcoming, Howard Law Journal). Here is the abstract:

    Justice Marshall’s career reveals his commitment to the objective that all people, regardless of their race, ethnicity or economic class, should have an equal opportunity to participate in the political process. His view of participation emphasized not just its instrumental value, but also Marshall’s belief that participation is intrinsically valuable to participants and the larger society. He saw the foremost constitutional principle as equality; and he viewed participation in politics as a related principle that “recognizes the moral worth of each individual, and in this way shows again that all persons are equal.” The Justice also understood that entrenched interests within the parties and elsewhere would use every weapon to keep new voices from being heard and would resist expanded public involvement in the political process. Justice Marshall knew concretely and personally that without those new voices in politics and without that broad participation in elections and governance, lasting and profound change in a democracy is impossible. Because so much of Justice Marshall’s legacy as a litigator and jurist lies in the realm of the fight for civil rights, scholars and biographers have usually dealt with these political process issues as they relate to the struggle in the courts and legislatures for equal rights, particularly for racial minorities. However, Marshall’s jurisprudence includes several important opinions concerning political parties and campaign finance regulations that are not explicitly focused on race. This article focuses on those opinions. In Part I, I discuss the passages of Justice Marshall’s opinions that reveal his view of the role of minor parties and other forces in ensuring that new perspectives and outsider views influence the political agenda. The key cases here are those describing the importance of minor parties in the American political process, but Marshall also sounds these themes in cases dealing with residency requirements in voting registration laws as well as in a dissent in a case involving felon disenfranchisement. Of course, new voices must have access to the political process to effect change, and Marshall’s commitment to equality of opportunity to take part in politics can be seen in the cases to which I turn in Part II: the campaign finance cases. Austin v. Michigan Chamber of Commerce is his most significant campaign finance opinion, but his egalitarian approach shapes other opinions, including his concurrence in part and dissent in part in Buckley v. Valeo. Austin is best understood as vindicating the principle of equality of political opportunity even though, to maintain his majority, Marshall disguised egalitarian arguments in the garb of corruption. Finally, in Part III, I discuss aspects of Marshall’s jurisprudential approach that demonstrate his awareness that entrenched players, particularly those in the legislature and at the helm of the major parties, will resist these new voices and seek to manipulate institutions to protect the status quo. He viewed the independent judiciary as a way to ensure that the political branches are not allowed to adopt laws and institutions that shut out those with dissenting perspectives. His distrust of some actions of the major parties was balanced, however, by an appreciation of the role they play in structuring political discourse and helping voters cast votes that reflect their priorities.

I look forward to reading this. Beth clerked for Justice Marshall the term he wrote the Austin opinion, so her insights on that case should be particularly interesting.

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