Ohio to Kilroy (D): Our Courts are Closed

Here's another little-noticed provision of the complicated election "reform" law, House Bill 3 (three provisions of which have already been stricken by the courts), this part codified at Ohio Rev Code. sec. 3515.08:

The nomination or election of any person to any federal office, including ... the office of member of congress, shall not be subject to a contest of election conducted under this chapter [i.e., the Ohio statute that allows for election contests]. Contests of the nomination or election of any person to any federal office shall be conducted in accordance with the applicable provisions of federal law.

What that means is that unlike candidates for state office, candidates for federal office can't take steps to contest the election result under Ohio law, but must instead pursue their remedies under federal law. That wouldn't be so bad, except that (as the Ohio General Assembly knew perfectly well) federal law doesn't really have any such provisions, at least not in the federal courts. The only conceivable remedy under federal law is for the candidate to petition Congress to intervene and seat the petitioner instead of the putative winner.

So how does this impact Mary Jo Kilroy (D-Columbus), who already has the benefit of an automatic recount? Well, 2,600 provisional ballots were disqualified in Franklin County, some portion of which were cast in the 15th Congressional District and in favor of Kilroy. These were reportedly turned aside because the voters weren't registered to vote, or voted in the wrong precinct. As to the latter, however, Ohio law requires poll workers to attempt to direct voters to the correct precinct, and anecdotal evidence suggests that poll workers were delinquent in performing this duty. Some of those provisional ballot would have been cast as regular ballots, if poll workers had done their jobs. If Kilroy wants to challenge the election over this failure to follow the law, H. B. 3 prevents her from going to state court to do that. Federal law provides no court remedy, so that leaves her with petitioning Congress, which at this point is still controlled by the Republican Party.

In what conceivable way is this provision an election "reform"? I think that what it's really about is that Republicans, big winners in 2004, didn't like the way that activists (supporters of losing candidates) complained about that election, requested a recount, and filed lawsuits. No more election challenges by sore losers in federal races, the Republican legislators decreed (H.B. 3 was passed along party lines). In the end, the integrity of the election process is the real loser.

Hat-tip to the excellent Moritz College of Law Election Blog.