Ohio House 16th: Elections Board to Consider Challenge to Brady (D)

Tomorrow at 9:00 am the Cuyahoga County Board of Elections will hold a hearing on a legal challenge to the candidacy of Jennifer L. Brady (D-Westlake) in the 16th Ohio House District. Brady opposes Edward Fitzpatrick Herman (R-Rocky River) for the seat of term-limited incumbent Rep. Sally Conway Kilbane (R-Rocky River).

Brady was placed on the ballot as a replacement candidate by a unanimous vote of all 16th District precinct members of the Cuyahoga County Democratic Party Central Committee. The governing provision of Ohio election law requires that the result of that vote be submitted to the Board of Elections by delivery of a sworn statement. In this instance the statement originally delivered was unsworn, although the county party subsequently submitted a sworn statement with the original unsworn letter attached. A protest has been lodged.

This is a matter of purely technical noncompliance. I am told that there is a split of authority in Ohio case law as to whether technical compliance is required, or merely substantial compliance. The board, composed of two Democratic and two Republican members, will vote on the issue. If the vote is 2-2, it will go to Secretary of State Ken Blackwell (R-Cincinnati) for decision.

It is not a foregone conclusion that Blackwell will remove Brady from the ballot over this technical violation, if it comes to that. He recently consented to a U.S. District Court ruling that the drastic voter registration requirements of H.B. 3 are invalid, suggesting that he desires to appear reasonable during his campaign for governor. However, the mere fact that the error occurred and this threat to Brady's candidacy arose is plenty frustrating.

UPDATE: I attended the beginning of the hearing at the Board of Elections this morning. Long story short, the board split 2-2 along party lines, with the result that Brady's name stays on the ballot pending a ruling by Blackwell.

The protests (there were two -- a Republican who appeared and said he "believes in following the law to a T," and a phantom "Democrat" who didn't appear and didn't answer calls from Brady's lawyer) were clearly put up by the Herman campaign. They didn't have any real wrongdoing to complain about, just a technical error they hoped to expoit. Their lawyer argued that it was a simple matter of statutory interpretation and that strict compliance is required, citing some cases. Brady's lawyer argued that there was no indication of fraud or harm but just an innocent mistake, that the controlling cases require only substantial compliance, and that the statute on replacement candidates was designed to afford voters the ability to vote for a member of their own party -- a purpose that would be frustrated by removing Brady from the ballot. Brady's case was also aided by an opinion submitted by outside counsel retained by the county prosecutor's office, submitted in writing. I had to leave for a Meet the Bloggers interview while the hearing was still in progress, so I missed whatever other arguments were made.

I thought that Brady's lawyer did an very good job. I was also impressed with the support displayed for Brady this morning. The chairman and executive director of the county party were present, along with quite a few other party officials, activists, and supporters. I spoke to Brady on the phone after hearing and she sounded upbeat and determined. She is pretty confident that Blackwell will not rule against her on a technicality while he is campaigning for governor.