Three people deserve credit/blame for my continued determination to plow through SCOhio’s weird post-Elephant Wars case. The first two are Ed Esposito, who challenged me via back channel to do so when the case came out and Cleveland Carole Cohen who has been commenting on the posts.
The third is ABJ editor Steve Hoffman who muffed interpreting the import of the decision last Friday on NewsNight Akron, compelling me to provide some correction for some sort of permanent record. To be fair to Hoffman, he made a typical first year law student mistake – accepting the first concurrence as somehow controlling the case. In fact, thanks to the 2-2-3 split, you have to mix and match the various bits the three groups agree on to glean anything like a rule for future cases.
Hoffman’s misreading was based on the placement of O’Donnell’s concurrence first after the per curium opinion. O’Donnell’s is easily the worst of the bunch, but also the easiest to describe. O’Donnell notes that the statute does not explicitly say that the Secretary of State can reject the second opinion and therefore she can’t.
No really, that’s what it says.
Certain strict constructionists – most notably their Justice Scalia, their Head Abbott, almost revel in giving absurd construction to a badly written statute and leaving it up to the legislature to clean up their own mess. O’Donnell takes that to an extreme: gutting a perfectly adequate piece of legislation supposedly (thought not really) for the sake of strictly construing it.
Under O’Donnell’s interpretation, the party committee can nominate someone wholly unqualified under statute – for instance, a non-resident or a non-voter – and the SoS would have no choice but to appoint that person. Not to say there’s any great chance of that happening, but when a reading of a statute yields a result absurd on it’s face, it should be a sign that you need to check your work.
When the other justices chide him for granting de facto appointment power to the central committee, he engages in genuinely silly wordplay, maintaining – with Margaret Keane eyes, no doubt – that it’s not appointment power at all, it’s only the power to nominate. Well, the power to nominate someone who must then be appointed, no questions asked is exactly the same as appointment power, no matter what you call it, Mr, Justice Waif.
Why does O’Donnell reach this absurd result? One could argue it’s partisan hackery and O”Donnell himself has certainly done much to support such a charge. But to give the Justice a little credit, I think something else is going on.
First off, let’s dispense with his policy basis for the decision. O’Donnell’s opinion states:
- I do not share the view that this statute allows for a perpetual process that permits the secretary of state to repeatedly reject committee recommendations. If that were an accurate interpretation of R.C. 3501.07, the secretary of state could conceivably continue to reject recommended appointees and cause a board of elections to have only three members. This situation demands finality, and construing the statute to permit a committee to enforce its rights with respect to its second recommendation of a qualified elector resolves the matter.
I don’t give much weight to O’Donnell’s policy rationale. Instead, it appears that he is doing what conservative justices often do – avoiding scrutinizing the factual findings of an executive. Cupp’s concurrence is all about examining Brunner’s decision making and finding it wanting. O’Donnell on the other hand, looks for any way to avoid doing so.
As noted earlier, conservative judges are not fond of second-guessing the fact findings of other branches. One way to affect that judicial preference is to give considerable deference to those findings. Another way is to find something/anything to justify avoiding the inquiry altogether.
In this, O’Donnell and the dissent have much in common. While O’Donnell claims the lack of explicit language about the second recommendation means that the SoS can’t reject it, the dissent says it means that the SoS can reject it, but the central committee can’t challenge the rejection.
Both opinions engage in literalism on an Amelia Bedelia scale. If you thought they really read this way in their every day lives, you would assign minders to the justices. Otherwise they might, for example, get stuck for hours in the shower after reading instructions of a bottle of shampoo: Apply, lather, rinse, repeat.
But of course, they don’t really read this way. They only choose to do in this case because they want to avoid what they consider the distasteful work of adjudicating an executive’s findings of fact. While deference is supposed to make the system flow better, in this case it makes things far worse.