Appeals Court Resolves Dispute Over Last-Minute Ohio Poll Extension

[Image via indychannel]

Back in April, I blogged about a controversy in Ohio stemming from a last-minute order by a federal judge extending poll hours because of a serious accident on an Cincinnati-area bridge. That action led to a debate over the role of courts in ordering poll extensions. Yesterday, the U.S. Court of Appeals for the Sixth Circuit handed down its opinion in the case, as the Toledo Blade reports:

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.

A key factor in the case was that the voter(s) seeking the poll extension were never identified – a necessary predicate for someone to have “standing” before the court:

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.

The key legal question here was what to do now that the election, the delay and the order were all in the past. Ultimately, the panel dismissed the court order but did so in a way (finding lack of “subject matter jurisdiction”) that will make it more difficult for such orders to occur again – which was a key reason why the Ohio Secretary of State pursued the appeal.

One member of the panel – Chief Justice R. Guy Cole – however, didn’t want to go that far and dissented from the reasoning in the case (while agreeing with the dismissal) because he wasn’t sure the court needed to resolve all future cases, but just this one. He would have dismissed the case as moot (i.e., already resolved in fact, if not legally) and would not have reached the standing issue at all:

The majority thinks that the mootness inquiry is not “free from doubt.” I disagree … First, the Secretary’s challenge to the district court’s order could have easily been resolved through a “traditionally live controversy” prior to the certification of the election results. True, “[c]hallenges to election laws” usually satisfy the evading-review prong, but the conditions for application of that “relaxed” standard do not exist here. Indeed, the Secretary purposely declined to seek reconsideration, an emergency stay, or expedited review of the injunctive order—precisely because the “provisional ballots did not change the outcome of any race.” Second, the Secretary’s speculation regarding the capable-of-repetition prong does not amount to “evidence creating a reasonable expectation” that this unusual confluence of events—a fatal accident that closed a major highway artery, just hours before an election—can reasonably be expected to recur. 

The majority likewise resolves this case on a threshold jurisdictional issue. From the majority’s vantage, the district court lacked jurisdiction because “there [was] no plaintiff with standing” below. I express no opinion on that score. But in the end, my disagreement with the majority is one of perspective: if mootness is “the doctrine of standing set in a time frame,” then I elect to resolve this appeal in the present, not the past. I would simply vacate the district court’s order and remand with directions to dismiss the case as moot. [Opinion, pp.9-10 (citations omitted)]

This opinion is a must-read for anyone – but especially non-lawyers – interested in how our legal system interacts with the election process. It’s a vivid reminder that seemingly arcane legal issues like standing and mootness suddenly become important when it’s Election Day and problems arise. The Sixth Circuit has resolved the matter for now – but more importantly, it’s given us a key window into the considerations judges face when confronting Election Day disputes.

Stay tuned …