Tokaji [Ohio State]: Preliminary Relief Denied in Ohio Recount Case Commentary
Tokaji [Ohio State]: Preliminary Relief Denied in Ohio Recount Case

Dan Tokaji, Moritz College of Law, Ohio State University:

"U.S. District Judge James Carr has denied a preliminary injunction and TRO, in a case seeking to compel Ohio election officials to complete a recount by the December 7 "safe harbor" date. His order can be found here on Rick Hasen's blog, and the moving papers in the case (Rios v. Blackwell) are here on the Election Law @ Moritz website.

The plaintiffs in the case include the Libertarian and Green Party candidates for President. They claim that the failure to conduct a recount by the "safe harbor" date — discussed in the post immediately below — violates their constitutional and statutory rights. Judge Carr doesn't reach the merits of their claims, instead resting on the fact that there's no possibility of the plaintiffs being harmed, given that they can't possibly prevail in the election.

My take: I think Judge Carr was correct to deny preliminary relief. He was also right to avoid the merits, at least at this stage, given the tricky issues that it raises. But this leaves a serious problem unresolved.

As I mentioned yesterday, Ohio's recount and contest scheme makes it difficult if not impossible for the state to meet the December 7 "safe harbor" date, by which contests over presidential electors must be resolved in the state is to ensure its chosen electors will be the ones counted in Congress. In fact, Ohio's scheme makes it difficult for the recount and contest process to be completed by the date on which the Electoral College meets (December 13). Perhaps some of the blame lies with Secretary Blackwell for not proceeding more quickly. But the biggest problem, it seems to me, lies in Ohio's statutory scheme.

It seems clear that the statute needs to be fixed. Whether the courts have a role to play in the process is less clear.

As an initial matter, it's hard to see how the Plaintiffs can plausibly claim a violation of any right under Art. I, Sec. 2 of the Constitution, providing that electors shall be appointed in such manner as the Legislature may direct. The only real argument is that Blackwell should declare the election by December 3, the date on which the Secretary of State is by statute supposed to send notice to the chosen electors. (He's said that he may not do it before December 6.) But this doesn't really solve the problem, since there still wouldn't be enough time for a recount and contest. Nor can Plaintiffs plausibly claim that the federal safe harbor law (3 U.S.C. 5) has been violated. It's up to states to determine whether they wish to take advantage of this safe harbor, and I think it's doubtful that this statute confers any privately enforceable rights.

That leaves Plaintiffs' claims under the First and Fourteenth Amendment. Maybe there's a due process argument, arising from the fact that the State of Ohio has prescribed a recount and contest procedure that can't realistically be completed in time for it to be meaningful. While this claim isn't very clearly fleshed out in Plaintiffs' moving papers, and it might be declared moot after the electoral college meetts, it would be nice to see this issue litigated now — rather than in the context of a truly disputed election four, eight, or twelve years hence. Capable of repetition yet evading review?" [November 23, 2004; Equal Vote has the post]

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