Back to the SCOhio SummitCo Republicans Decision: It Didn't Have to Be So Hard.

The case of SummitCo Republicans v. Brunner is (or should be anyway) a simple matter of statutory interpretation. I always tell my students to start with the text, so here is the text of Ohio Revised Code Section 3501.07, in it's entirety:

At a meeting held not more than sixty nor less than fifteen days before the expiration date of the term of office of a member of the board of elections, or within fifteen days after a vacancy occurs in the board, the county executive committee of the major political party entitled to the appointment may make and file a recommendation with the secretary of state for the appointment of a qualified elector. The secretary of state shall appoint such elector, unless he has reason to believe that the elector would not be a competent member of such board. In such cases the secretary of state shall so state in writing to the chairman of such county executive committee, with the reasons therefor, and such committee may either recommend another elector or may apply for a writ of mandamus to the supreme court to compel the secretary of state to appoint the elector so recommended. In such action the burden of proof to show the qualifications of the person so recommended shall be on the committee making the recommendation. If no such recommendation is made, the secretary of state shall make the appointment.

If a vacancy on the board of elections is to be filled by a minor or an intermediate political party, authorized officials of that party may within fifteen days after the vacancy occurs recommend a qualified person to the secretary of state for appointment to such vacancy.

So when a board member's term is coming to an end or when there's a vacancy, the Secretary of State the central committee of the party with the appointment either accepts the recommendation or rejects it and gives the party a chance to submit another. That part isn't in dispute. If the party doesn't like the SoS's decision, they have two choices as well -- they can name another candidate or they can challenge the decision in a mandamus action¹.

The question gets slightly trickier when we get to the second candidate. For five of the seven justices, this is where the case turns and they supposedly have great difficulty with the lack of specificity about what happens if the SoS doesn't like that second either.

It seems clear to me that the statute is essentially a do loop. That is, when the first candidate is rejected, you go back to step one -- the SoS can appoint or reject, the county can accept the rejection and name another or file mandamus, and so it goes.

That's the clear intent of the legislature. When you read the interpretations advanced by either O'Donnell or the dissent, they seem bizarre. Supposedly, both opinions (written as they are by Republican judges) are strictly construing the statute. Since the statute doesn't explicitly say "Go back to step one," they insist that we don't have authority to go back to step one.

Fine. I think we can make this work even using the ironclad rules of strict constructionism. The statute applies when either a board member's term is up or when there is a vacancy. Let's say the SoS rejects the first candidate and the party has decided not to file mandamus. What situation are we then in? There's a vacancy on the Board of Elections. What do we do when there's a vacancy on the Board? Well, the party picks a candidate and the SoS either accepts or rejects.

In other words, just reading the language of the text in the context of what is actually happening on the ground gives you the loop construction. Simple, no?

According to our Supreme Court, no.

¹To go Junie B. Jones on you for a bit, mandamus is a legal word meaning "You do so have to, so there." Mandamus is what's called an extraordinary writ, one that compels a government official to do something he or she is legally obligated to do. It's companion, the writ of prohibition, compels a government official to stop doing something unlawful.