Trying to Make Sense of the SummitCo. GOP v. Brunner Decision

A friend wrote asking for some feedback on the opinion issued this week by the Ohio Supreme Court over appointments to the Summit County Board of Elections. This is a few days later, but whaddya want, I'm on vacation.

A full explication of the opinion and the various sub-opinions will produce a post of daunting, scroll-past-in-your-reader length. So we'll do this in segments.

Bottom line, the opinion is an embarrassing mess. To begin with, it's not a 4-3 decision, it's a 2-2-3 decision. A bare majority agrees in the result, but using two wildly different standards which would produce two wildly different results in future cases. Five justices -- the dissent, plus O'Donnell and Lundberg-Stratton in the first concurrence -- find ways to punt actually adjudicating anything. While ODP Chair Redfern accused the Court of being partisan, the opinion actually reeks of a Court scrambling to avoid making any hard decision, precisely because it touches on partisan politics.

A little basic information. Most of the time, the most important part of the Supreme Court's function is not deciding the actual merits of the case before it, but the twin functions of clarifying the law for future cases¹ and offering a check on executive and legislative power.². This case was different in that it was an original action. That is, the law allowed the parties to try the case directly before the Court, rather than go through the lower courts. Original jurisdiction cases are rare.

Because the case involves interpreting a fairly basic statute which governs how elections boards are appointed, and because it involves a dispute across party lines and because of the Elephant Wars in the background, this case should have seemed pretty darned important to the Court on the "deciding the issues" axis as well as the "clarifying the law" and "checking the executive" axes. Curiously, then, we begin with a per curium opinion.

A per curium opinion is one unsigned by specific justices. The Latin translates roughly into "from the court." Generally they are short and contain little analysis. In theory such an opinion is handed down when the issues are straightforward and uncontroversial, needing only application of well-established precedents.

Generally that's the case, but in fact courts have also been known to issue opinions per curium because the issues were too controversial. The infamous Bush v. Gore opinion, for example, starts with a per curium opinion, then moves to the various concurrences and dissents. That we have a similar structure here is not entirely a coincidence.

The per curim part of the opinion gives only the disposition: Brian Daley is in, Don Varian is out, but the decisions that Varian participated in stand. Among other things, this resolves a last skirmish of the Elephant Wars. And frankly, it's not a bad result. It's in the getting there that the Court gets lost.

Next up: This really shouldn't be so hard.

¹This is because we are heirs to the English common law tradition. It's become fashionable in certain political circles to get howling fantods about judges making law, but the fact is common law judges have been making law for centuries. Conservatives will tell you that trying to change centuries of tradition and culture with the stroke of a pen is a disastrous undertaking, but when they rail against judge-made law, they are essentially advocating that sort of upheaval.

²And the Secretary of State is an executive officer. Ohio, unlike the national government, has a non-unitary executive. Executive functions are divided among five independent elected officers with overlapping spheres of influence. By the way, a similar multiple executive was contemplated and ultimately rejected by the framers of the Constitution.