Ok. This post is for geeks. Comity and state/federal relations geeks—in the context of election law.
Last month I did a post about a mandamus action filed directly in the Supreme Court of Ohio by Tom Niehaus, President of the Ohio Senate, and Lou Blessing, a State Representative and Speaker Pro Tem, against Secretary of State Jon Husted challenging what is known as the NEOCH Consent Decree. This Decree was entered into April 19, 2010 in federal court in Columbus by the Northeast Coalition for the Homeless, the Ohio Democratic Party and then Secretary of State Jennifer Brunner. The State of Ohio intervened in the suit as a defendant. The NEOCH consent decree was to settle a lawsuit (originally filed against Secretary of State Kenneth Blackwell) challenging certain aspects of the Ohio Voter ID laws. Among other things, the NEOCH Consent Decree prohibits county boards of elections from rejecting provisional ballots cast by voters who use the last four digits of their social security numbers as identification (“NEOCH ballot”) if “the voter cast his or her provisional ballot in the wrong precinct, but in the correct polling place, for reasons attributable to poll worker error”.
This should ring a bell at this point. The entire brouhaha in the litigation over the Hamilton County Juvenile Court election between Tracie Hunter and John Williams was over whether to count certain provisional ballots cast in the right polling place, but wrong precinct (known colloquially as right-church-wrong-pew ballots). I have opined that this current challenge to the NEOCH consent decree is to make sure that what happened in the Hunter case (which Tracie Hunter has now officially and finally won by 74 votes) does not happen again. The Republican leaders essentially were asking the Supreme Court of Ohio to find that the Secretary of State does not have the authority to order any (not just NEOCH ballots) “right-church-wrong-pew” ballots to be counted, since under existing Ohio law ballots cast in the wrong precinct for any reason cannot be counted. Whether such a law can withstand a due process challenge is another story entirely.
On May 8, the plaintiffs in the NEOCH matter filed a motion in the federal court in which the NEOCH Consent Decree was entered to enjoin the mandamus action in the Supreme Court of Ohio, and on May 10, Judge Algenon Marbley, the Columbus Federal District Judge who presided over the NEOCH Consent Decree, granted it. He ordered Niehaus and Blessing to dismiss their mandamus action or show cause why they should not be held in contempt of court.
Can he do that? In a fascinating opinion issued May 11 more fully explaining his ruling, Judge Marbley held that he could indeed do that. At one point in his opinion, he characterized the primary purpose of the mandamus action as a move to “compel the Secretary [of state] to disobey this Court’s orders pursuant to the Consent Decree.”
Judge Marbley found that Niehaus and Blessing filed their suit in the Supreme Court of Ohio in their official capacities as members of the General Assembly and as agents of the state of Ohio. Judge Marbley noted that the state of Ohio is a party to and bound by the terms of the NEOCH Consent Decree, which means the two legislators are bound by it as well. Their interests were aligned with and represented throughout the NEOCH proceedings by the Ohio Attorney General.
Taking things a step further, Judge Marbley ruled that even if the legislators weren’t parties, the All Writs Act, 28 U.S.C. § 1651 (which was originally part of the Judiciary Act of 1789) gave him the authority to bind nonparties to prevent the frustration of the NEOCH Consent Decree. “Simply because Relators (Niehaus and Blessing) now find their particular individual interests to be in conflict with certain provisions of the Consent Decree does not magically release them from its terms; otherwise, entering the decree would have had no purpose,” Marbley wrote. “The practical effect of the Relators’ action is to frustrate this Court’s final judgment from being carried out, and the All Writs Acts allows the Court to enjoin the Relators from proceeding with it.” And he chided the legislators for not invoking one of the specific provisions of the NEOCH Consent Decree which provides a mechanism for any party to it to challenge is terms, instead of filing the mandamus action.
In a far more conciliatory tone, Judge Marbley made it clear that his ruling was not a challenge to the authority of the Ohio Supreme Court to decide Ohio law, but was only a “limited intrusion into the Ohio Supreme Court proceedings necessitated by the Relators’ prior commitments in this Court.” An injunction was necessary in this case because the Secretary of State simply cannot obey “conflicting orders on how to direct the Board of Elections.”
Also explaining why the extraordinary remedy of injunction was necessary in this case, Marbley wrote, “Conflicting orders to the Secretary [of state] from the Ohio Supreme Court would not only undermine the jurisdiction of this Court, but would further confuse an already well-muddied electoral landscape in these critical months leading up to a Presidential Election.”
One final side note of interest. In the Hunter case, a mandamus action was also filed directly in the Supreme Court of Ohio, by Tea Party Activist John Painter and candidate John Williams to compel the Secretary of State to rescind certain directives about how to determine poll worker error in the Hunter case. In a motion very similar to the one filed in the NEOCH Consent Decree case, Hunter’s lawyers asked Judge Susan Dlott to enjoin that mandamus action, but she declined. Judge Marbley made reference to this in his opinion, but found the mandamus action filed in the Hunter case to be different from the current one, because in his view it did not challenge Judge Dlott’s holding. I’m not so sure I agree, but that ship has sailed.
Post script. Senator Niehaus and Representative Blessing dismissed the mandamus action on May 11, without prejudice.