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Nov 13 2012

Husted About to Get Smacked Down Again

Jon Husted, the Ohio Secretary of State, has done absolutely everything he could to suppress the vote in that state and has already lost more than one lawsuit over it. It looks like he’s about to lose another one, over the counting of provisional ballots, which are to be counted by Nov. 17.

As I wrote last week, Husted had issued an 11th hour order to local election clerks that contained clearly illegal instructions on what is required for voters to cast a provisional ballot. A lawsuit was filed immediately and, to say the least, it didn’t go well for the state during the first hearing. The judge really grilled the attorneys for the state, who could not come up with any argument for why the law allowed them to do what they did.

THE COURT: Show me the language.

MR. EPSTEIN: I cannot find the word “shall” for you. I believe it’s contemplated in the way they designed the form where they said this is the information for the affirmation, and then the voter can provide at his or her discretion this other information.

THE COURT: Mr. Epstein, I have said on the record that Mr. Coglianese is probably one of the best election lawyers who’s been in my courtroom; maybe one of the best lawyers, period. I believe the same thing of you because of the nature of the work that you’ve done. Do you honestly believe what you just told me?

MR. EPSTEIN: I do, Your Honor.

THE COURT: If you honestly believe that, show it to me, because you were — in another context, and in this case, you have argued that it’s literally not there. You have argued that the absence of the language means the absence of the law. Now you’re telling me to look at this and find an obligation, a burden, if you will, within the penumbras of this statute. Show it to me. All I’m asking is to see it. If I can see it, I can believe it. But if you can’t show it to me, then make your penumbras argument.

We’re going to be transparent, and you’re going to tell me — if you expect to prevail, somebody is going to answer my question because no one is answering it from your side as to where it is. So tell me if it’s in the penumbras because you can’t point to the language. So show me where it is. Show me where it’s meant. Show me the legislative history. Show me the facts that the secretary used to make the decision to change this directive at seven o’clock on a Friday night on the eve of an election. I want to see it, and I want to see it now. Show it to me.

MR. EPSTEIN: Your Honor, I have no legislative history to present to the Court.

The judge was particularly bothered by the fact that the new regulation was issued on a Friday night before the election:

THE COURT: Mr. Epstein.

Mr. Epstein, would you agree that voting is the linchpin of our democracy?

MR. EPSTEIN: Yes, Your Honor.

THE COURT: I do too. What concerned me about the 2012-54 directive is that it was filed on a Friday night at 7 p.m. The first thought that came to mind was democracy dies in the dark. So, when you do things like that that seeks to avoid transparency, it appears, then that gives me great pause but even greater concern.

A ruling should come down on Monday, before the provisional ballots are counted.

10 comments

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  1. 1
    Paul W.

    Is this crap not criminal, such that Husted should go to prison for it?

    It seems to me that in a democracy, if there’s one capital crime, it should be rigging elections. That should be considered treason.

    A long stretch in prison should be the minimum punishment.

  2. 2
    Ben P

    THE COURT: Mr. Epstein, I have said on the record that Mr. Coglianese is probably one of the best election lawyers who’s been in my courtroom; maybe one of the best lawyers, period. I believe the same thing of you because of the nature of the work that you’ve done. Do you honestly believe what you just told me?

    MR. EPSTEIN: I do, Your Honor.

    I’ve been on the receiving end of questions like this from a judge, although never from a federal judge. It’s not comfortable.

    That said, it’s also a dumb question. The lawyer, provided hes’ competent and plans to be employed in the future, will ALWAYS answer the question “do you really believe that?” with “yes, your honor, I do.” At the absolute most maybe you squeeze out with the weasel “that’s my client’s position your honor.”

    A lawyer is a representative for his client. He is there to argue the things his client wants. Sometimes your client takes a very untenable position and you can’t convince them to do otherwise. A private lawyer has the ability to walk away from the client if it gets bad enough, but the state attorney general has no such ability (unless the individual lawyer wants to quit, then another will take his place).

    Note, the state is the defendant here. (Technically it’s John Hustead, in his official capacity, but virtually the same thing). So additionally, it’s not that the state has brought a lawsuit. They’re defending a lawsuit saying “you did something bad,” and the attorney general has been directed to say why it isn’t bad. When you’re defending, you do the best you can.

  3. 3
    Ben P

    Is this crap not criminal, such that Husted should go to prison for it?

    It seems to me that in a democracy, if there’s one capital crime, it should be rigging elections. That should be considered treason.

    A long stretch in prison should be the minimum punishment.

    Calm down and think about what you’re suggesting for a moment.

    Even if I agree that certain behavior ought to be criminal, (and it probably already is, should someone want to try to make a case.) What you’re suggesting is that the Federal Government headed by one political party indict and attempt to convict a high elected official from another political party of a crime.

    Even if it’s justified, that’s the sort of thing you approach very very carefully because of its banana republic potential. If you’re doing it you better have unimpeachable evidence of the crime, because everyone on the other side is going to call you out for abusing the criminal justice system to score political points.

  4. 4
    Mr Ed

    THE COURT: Mr. Epstein.

    Mr. Epstein, would you agree that voting is the linchpin of our democracy?

    MR. EPSTEIN: Yes, Your Honor. The key is making sure that those who vote agree with you

  5. 5
    Paul W.

    What you’re suggesting is that the Federal Government headed by one political party indict and attempt to convict a high elected official from another political party of a crime.

    Of course that’s what I’m suggesting.

    Would you argue that a politician shouldn’t be tried for murder, extortion, or bribetaking, just because they’re of the opposition party, and the Federal Government is thus “headed” by a political “opponent”?

    The potential for abuse is there too. There should of course be well-written laws and an independent judiciary as a check against partisan witch hunts—the administration could try to punish enemies with criminal suits, but they should fail if they’re not well-founded, and abusing the system for political persecution should be criminal too.

    Fear of partisan witch hunts shouldn’t make election-stealing de facto legal, or noncriminal. It should be a big fucking deal—suppress the vote to rig an election, go to prison—not business as usual, as it quite clearly is now.

    And even if the laws aren’t well-written at this point, some serious attempts at prosecuting these assholes might make the need for better, more cleanly enforceable laws more obvious—e.g., anti-gerrymandering laws requiring districts to at least be reasonably compact and not intricately shaped by objective geometric standards, national standards for voting hours and standard procedures for automatically extending them if lines are long, etc.

    There’s got to be a better way than what we’re doing now, giving politicians lots of wiggle rooom to obviously rig elections without criminal penalties. (Or even serious civil ones, usually, right? Is Husted going to get fined millions of dollars for trying to swing an election that affects hundreds of millions of people? Does he even have to pay a penny a head for trying to make many millions of people’s votes not count?)

  6. 6
    sivivolk

    And another problem that a federal, non-partisan elections agency would help solve.

  7. 7
    cycleninja

    I like this judge. That is all.

  8. 8
    Reginald Selkirk

    “Your Honor, the dog ate my homework.”

  9. 9
    Worldtraveller

    Calm down and think about what you’re suggesting for a moment.

    Even if I agree that certain behavior ought to be criminal, (and it probably already is, should someone want to try to make a case.) What you’re suggesting is that the Federal Government headed by one political party indict and attempt to convict a high elected official from another political party of a crime.

    I don’t think that’s slowed down the (R)s at all.

    I don’t think party affiliation matters when it comes to potentially being tried for crimes. It certainly shouldn’t. Just because we know the right wing echo chamber will make a stink out of it doesn’t mean we should let that deter ‘us’. Fuck that noise.

    Who, exactly, is representing the (D) party in this case? Are they actually appointees, or is the prosecution (in this case) private attorneys like the ACLU or something?

  10. 10
    Ben P

    Who, exactly, is representing the (D) party in this case? Are they actually appointees, or is the prosecution (in this case) private attorneys like the ACLU or something?

    It appears to be private attorneys, but it’s not the democratic party. THe organization(s) that filed suit were a local SEIU chapter and the “Northwest Ohio Coalition for the Homeless.” I’d wager the latter is a 501(c)(4).

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