Setting the Record Straight on Subodh Chandra

Last week the Cleveland Plain Dealer went overboard in its coverage of a minor episode in an important lawsuit. The important story was that the lawsuit largely succeeded in avoiding an impending catastrophe in the debut of the vague and inconsistent voter ID requirements in House Bill 3. There were still some problems at the polling places, but nothing like the disaster that loomed before a November 1st consent order and a November 14th agreed enforcement order were issued by the judge in the case. These orders defined vague terms in the statute and clarified the specific procedures to be followed, including importantly that every absentee ballot would be counted whether or not ID was submitted with the ballot and provisional ballots would be counted without further verification when they should have been cast as regular ballots. This was a huge victory for voting rights. The lawyers for the plaintiffs, including former Cleveland Law Director Subodh Chandra, deserve public praise and recognition for their achievement.

What the Plain Dealer chose to highlight (and mischaracterize) last week was a mere internal glitch in the litigation, not affecting the public or the outcome of the case. A lawyer (Chandra) did something that annoyed the judge -- he sent an email to all 88 county boards of elections, forwarding copies of court documents and urging compliance with the court's orders -- but after a hearing the judge agreed that no rules or laws were violated and the lawyer deserves no punishment of any kind. It should have been a non-story, a passing mention at best.

Instead, the Plain Dealer trumpeted the incident in two news stories, AND in its "Cheers and Jeers" feature. The first story told how the lawyer faced a contempt hearing the next day. The next day's headline was not "Judge Exonerates Lawyer" but "Judge Upbraids Lawyer," focusing on the judge's expression of displeasure at the hearing and ignoring his actual order that vacated the contempt motion and imposed no sanction of any kind. Two days later the paper gave Chandra a "Jeer," saying that Chandra sent an e-mail to the boards "on how to count provisional ballots," failing to mention that he was not making up his own rules but forwarding official documents and the court orders, and that he told the boards in the email to consult their own lawyers on the matter, and that he simultaneously sent the email to lawyers for the state. The "Jeer" also said that Chandra "was lucky he got no more than a lecture." Lucky? With no factual basis at all, the paper implied that Chandra did something illegal (or at least grievously improper) and deserved punishment that he was fortunate to avoid.

Some readers will think this is not a big deal and I should just let it drop, but I strongly disagree. Lawyers who champion the rights of individuals against the power of the state are engaged in the noblest and bravest task in the whole field of law. They challenge the most powerful of all adversaries in the pursuit of justice, and they deserve our utmost respect. All too frequently, however, there is a pushback against the few who are willing to take on this role. They are troublemakers, they "push too hard," they cause embarrassment to public officials, they make it harder for bureaucrats to take the easy way over the right way. So it bothers me a great deal when a lawyer who achieved much in the protection of voters' rights is portrayed as a malefactor instead of a hero.

I can't make the newspaper retract the coverage I don't like, but I can at least do my part to set the record straight:

(1) Chandra violated no attorney disciplinary rule. The lawyers for Blackwell put this ridiculousness in their contempt motion, but they had dropped it by the time of the actual hearing.

(2) The boards of elections weren't parties to the litigation, so it wasn't a case of a lawyer communicating directly to persons already represented by another lawyer. Opinion 92-7 of the Ohio Supreme Court Board of Commissioners on Grievances and Discipline specifically says that lawyers can communicate with governmental entities unless and until a government attorney is involved in the particular matter. Only the Franklin County Board of Elections had been specifically represented by lawyers in this situation, and Chandra sent the email relating to that board to those lawyers instead of to the board.

(3) In a different voting rights case at about the same time, Chandra had communicated with all 88 boards of election with the explicit approval of government counsel (in fact, that's how he got the email addresses).

(4) Chandra committed no contempt of court. Contempt is so broadly defined that it basically consists of whatever a judge declares it to be, and in this instance the judge declared that no contempt occurred. While the judge did scold Chandra for bad judgment in going directly to the boards instead of through the court in this instance, he also praised Chandra's performance in the case and his abilities as a lawyer.

All I'm saying is, please -- let us cease with this impugning of a champion of our fundamental rights, and let us afford him instead the honor and praise that he deserves.