Chandra Faces Possible Contempt of Court Sanction in Voter ID Litigation

The Plain Dealer is reporting that Cleveland attorney Subodh Chandra must appear before U.S. District Judge Algenon Marbley at 9:00 a.m. tomorrow, November 21st, to show cause why he should not be held in contempt of court for sending an e-mail message to all 88 county boards of election on Friday without prior consent of opposing counsel or approval by the court.

The judge scheduled tomorrow's hearing in response to a motion filed by lawyers for the Secretary of State and Attorney General. In a 17-page responsive pleading filed on behalf of Chandra today, Chandra takes sole responsiblity for the e-mail, concedes that it was "hasty, ill-considered and inappropriate" and a "mistake," and apologizes to the court and opposing counsel. Without trying to justify or excuse the mistake, Chandra argues that the e-mail was a well-intentioned (though misguided) reaction to exigent circumstances, i.e., reports of boards personnel not properly applying the court's prior orders about counting provisional ballots on the eve of Friday's deadline for accepting supplemental information from voters. (Specifically, voters were being told to submit information after the Friday deadline, not before.) Chandra also notes that there was some lack of clarity about whether the boards of election were parties to the voter ID litigation, that he had communicated with the boards by e-mail with the approval of the Secretary of State in a previous situation, that his e-mail urged boards of election to consult with their attorneys, and that he forwarded the e-mail to opposing counsel in the voter ID litigation.

Courts have broad discretion in the area of contempt of court. The judge has great latitude in deciding whether Chandra's action rises to the level of contempt, and if so what sanction is appropriate.

UPDATE: For the record, the reported improper actions by boards of election were not limited to misinforming voters about when to submit identification information, but also included adding additional eligibility requirements for provisional ballots on top of those explicitly agreed by the parties and ordered by the court. The intent of the court's orders on counting provisional ballots appeared to be in serious jeopardy.

Posts today at the Plain Dealer blog Openers and Right Angle Blog have unfairly mischaracterized Chandra's e-mail. The former says that Chandra "gave instructions" on how to count provisional ballots, and the latter says his e-mail "purport[s] to provide legal advice." This is plainly not the case. Chandra's e-mail is titled "Re: FW: Directive 2006-90 Consent Order Regarding Counting of Provisional Ballots and Observers" and in the body of the message Chandra refers the boards to the attachments (explicitly including the court's actual orders) and urges them to consult their own attorneys. That is neither giving instructions nor providing legal advice.

Also, it is important to point out that the county boards of elections are separate legal entities from the Secretary of State, and plaintiff's attorneys had been in frequent contact with the boards in the run-up to and during the litigation. There was no indication that the boards were represented by government lawyers in the lawsuit in Columbus (except the Franklin County board, as to which Chandra sent the e-mail to the assistant prosecutors who had appeared in the lawsuit instead of directly to the board), so there was a basis for his assumption that he could directly contact the boards under the circumstances.

In any event, this is a situation where the conduct in question was undertaken not for any improper purpose but to effectuate the court's order and to protect his clients' rights.