Jon Husted, the Ohio Secretary of State, has done absolutely everything he could to suppress the vote in that state and has already lost more than one lawsuit over it. It looks like he’s about to lose another one, over the counting of provisional ballots, which are to be counted by Nov. 17.
As I wrote last week, Husted had issued an 11th hour order to local election clerks that contained clearly illegal instructions on what is required for voters to cast a provisional ballot. A lawsuit was filed immediately and, to say the least, it didn’t go well for the state during the first hearing. The judge really grilled the attorneys for the state, who could not come up with any argument for why the law allowed them to do what they did.
THE COURT: Show me the language.
MR. EPSTEIN: I cannot find the word “shall” for you. I believe it’s contemplated in the way they designed the form where they said this is the information for the affirmation, and then the voter can provide at his or her discretion this other information.
THE COURT: Mr. Epstein, I have said on the record that Mr. Coglianese is probably one of the best election lawyers who’s been in my courtroom; maybe one of the best lawyers, period. I believe the same thing of you because of the nature of the work that you’ve done. Do you honestly believe what you just told me?
MR. EPSTEIN: I do, Your Honor.
THE COURT: If you honestly believe that, show it to me, because you were — in another context, and in this case, you have argued that it’s literally not there. You have argued that the absence of the language means the absence of the law. Now you’re telling me to look at this and find an obligation, a burden, if you will, within the penumbras of this statute. Show it to me. All I’m asking is to see it. If I can see it, I can believe it. But if you can’t show it to me, then make your penumbras argument.
We’re going to be transparent, and you’re going to tell me — if you expect to prevail, somebody is going to answer my question because no one is answering it from your side as to where it is. So tell me if it’s in the penumbras because you can’t point to the language. So show me where it is. Show me where it’s meant. Show me the legislative history. Show me the facts that the secretary used to make the decision to change this directive at seven o’clock on a Friday night on the eve of an election. I want to see it, and I want to see it now. Show it to me.
MR. EPSTEIN: Your Honor, I have no legislative history to present to the Court.
The judge was particularly bothered by the fact that the new regulation was issued on a Friday night before the election:
THE COURT: Mr. Epstein.
Mr. Epstein, would you agree that voting is the linchpin of our democracy?
MR. EPSTEIN: Yes, Your Honor.
THE COURT: I do too. What concerned me about the 2012-54 directive is that it was filed on a Friday night at 7 p.m. The first thought that came to mind was democracy dies in the dark. So, when you do things like that that seeks to avoid transparency, it appears, then that gives me great pause but even greater concern.
A ruling should come down on Monday, before the provisional ballots are counted.
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