COLUMBUS — The decision came almost six months after the primary election, but a federal appeals court today rejected a judge’s decision to keep the polling places in four southwest Ohio counties open longer because of a traffic jam.
That lower court’s decision on the day of Ohio’s March 15 presidential primary election spawned a bill, vetoed in June by Gov. John Kasich, that would have made it tougher for similar decisions to be made in the future.
A three-judge panel of the U.S. Sixth Circuit Court of Appeals agreed that the federal district judge in Cincinnati erred in ordering Hamilton, Butler, Clermont, and Warren counties to keep the polls open an extra hour because of an anonymously reported accident on I-275.
Although today’s ruling has no retroactive effect on the election, Secretary of State Jon Husted and the boards of election in Hamilton and Butler counties filed the appeal of U.S. District Court Judge Susan J. Dlott’s order to prevent similar action in the future.
On appeal, Circuit Judge Jeffrey Sutton wrote that there was no plaintiff in the case, let alone a plaintiff in each of the affected counties, because the judge issued her order based on an anonymous call received by a court clerk.
“To permit plaintiff-less complaints is to permit the federal courts to issue advisory opinions and non-advisory orders in all manner of circumstances prompted by all manner of anonymous phone callers,” Circuit Judge Sutton wrote. “A system that permits relief to be granted in connection with a plaintiff-less complaint is as close as we will ever come to permitting ‘ghosts that slay’.”
The anonymous call came in shortly before the polls closed at 7:30 p.m. The polls had indeed closed by and the affected polling places had to scramble to reopen by the time Deputy Secretary of State Matt Damschroder could respond to a 7:28 p.m. voicemail from the district court clerk.
“The district court judge, we realize, was in a difficult spot,” Circuit Judge Sutton wrote. “She was out of the office. It was late. She had little time to act. All of this presumably led her to err of the side of protecting people’s right to vote.
“But none of this explains why the clerk’s office or the court couldn’t answer the phone call with the most natural of questions: ‘Who is it?’ And none of this allowed the court to sidestep the (constitutional) limitations on our power,” he wrote.
Mr. Kasich in June vetoed Senate Bill 296 passed by fellow Republicans in the General Assembly that could have required those who file such complaints to post bond to cover the additional costs of keeping polls open longer should such decisions later be overturned on appeal.
Democrats had argued that the bill would have amounted to a poll tax on voters.
The bill also would have required those who vote during the extended hours to cast provisional ballots that would not be counted if the lower ruling were later overturned.
Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.
First Published September 6, 2016, 8:11 p.m.
