Sen: Dann (D) To Focus on Cleaning Up Ohio Elections

Last night I participated in a conference call with several Ohio bloggers and attorney general candidate State Sen. Marc Dann (D-Liberty Township). Dann used the call to highlight the newly enhanced role of the attorney general in investigating and prosecuting election law violations.

Dann remarked that Ohio elections have been the shame of the nation when they should be the pride of the nation. What may help to change this deplorable situation is a little-discussed provision of this year's "election reform" law, H.B. 3, which invests the attorney general with power to prosecute election law violations in cases where county prosecutors decline to do so. Prosecution of such violations by local officials in the past has been very limited because of the cost and because the targeted activity may extend beyond a single county. Pursuing enforcement at the state level will bring greater expertise, resources, and scope to bear on the problem, if Ohio has an attorney general willing and able to act aggressively.

The deterrent effect of attorney general authority over prosecuting election law violations is very important, Dann said. Part of the reason that corruption has flourished in Ohio is because the perpetrators have not been afraid of being caught. This is why Tom Noe actually said to an associate that the Bureau of Workers Compensation investment fund was like his personal ATM machine – he had no fear of being detected and prosecuted. The history of opponent Betty Montgomery (R) in other areas is to turn her head the other way when she had the chance to intervene. The very prospect that Dann may hold the office next year, with authority to investigate elections irregularities, may be enough to deter misconduct that might otherwise occur in the handling of the 2006 elections.

The attorney general is just as important as the secretary of state to cleaning up Ohio elections. Dann said that he and secretary of state candidate Jennifer Brunner (D-Columbus) have talked about sending one person from each of their staffs to every Board of Elections in the state, to make sure that the rules are consistent and to resolve problems as they arise.

Dann would take the important step of creating an Election Integrity Section in the Office of the Attorney General. It makes sense, Dann said, to have lawyers trained in the field of election law whose job is to provide answers and, if necessary, prosecute violations. The process of investigating such violations would include convening a grand jury (either locally or one in Columbus with statewide jurisdiction), issuing subpoenas for witnesses and documents, and conducting investigations through Bureau of Criminal Investigation agents. Ohio has not previously given its attorney general prosecution authority in general, except in the area of Medicare fraud. However, prosecution by the attorney general is standard practice is some other states, including New York.

Examples of election law violations that could be prosecuted are knowingly preventing people from voting or registering to vote, or knowingly creating Jim Crow-like impediments to voting. Without prejudging any particular situation, Dann said that this could include the decision on the number of voting machines distributed to polling places.

The statute of limitations for election law violations is six years, so as of the date that the next attorney general takes office that person could look into violations that occurred as long ago as the year 2000. Dann has looked into the constitutional issue of exercising this power under a new law (HB 3) to look into past violations and has determined that there is no issue of it being an ex post facto law. The remedy that would be imposed for successful violation of election laws would be going to jail, either for a misdemeanor or a felony.

Dann pointed out that the flip side of the attorney general’s power to prosecute (and therefore deter) election violations is that an Attorney General could conceivably misuse this power to suppress voting. HB 3 specifically provided that certain election violations are felonies (although such provisions relating to paid collectors of voter registration forms were recently enjoined by a federal judge). There is a risk that an attorney general could abuse the power of prosecuting election law violations to deter legitimate voter registration and get-out-the-vote activities.

As to the prospect of Betty Montgomery testifying as a character witness for Tom Noe, Dann confirmed that this is an issue in the race that he will continue to raise. He also said that he will be on TV beginning Sunday, and that he will match Montgomery dollar for dollar on TV advertising the rest of the way. His initial TV buy is about $1 million, and he hopes to increase that to $1.5 million.