Strike One; “Mandamus will not issue to compel a vain act.”


RadarWe have been blogging that Issue 1, the referendum on the Community Defense Act (CDA) is still a live ballot question, despite Secretary of State Jennifer Brunner’s notification of the No On Issue 1 Committee (the Committee) that it did not meet the requirements to put the issue on the ballot. She still has not notified the county boards of election that the issue is dead so it continues to be live for the November 6, 2007 election. She claims that she has delayed making the notification because of a pending Ohio Supreme Court Case seeking to force validation of signatures.

In a decision issued today by the Ohio Supreme Court those arguments in favor of forcing validation of invalid signatures have crashed with a resounding thud. The phrase the justices used from an earlier case, “Mandamus will not issue to compel a vain act” tells the story of the decision. In reading the decision, one gets the impression that the arguments in favor of validation are not being rebuked in a polite but gentle fashion so much as being subjected to a legal smackdown.

The justices rejected several arguments by explaining that to accept them would tantamount to creating complete electoral chaos by opening large loopholes in which referendum organizers could force acceptance of bad signatures by simply forgoing challenges until time limit windows had closed. They also rejected arguments that would have required local boards of election to validate all of the signatures collected again, nearly 700,000, while validating supplemental signatures- all within a 5 day window! They also rejected arguments that signatures from county boards of election should be automatically counted as valid if the Secretary of State’s return deadline were missed. The justices were not impressed

Although some of the boards violated the five-day requirement of R.C. 3519.16, it is clear from the secretary of state’s worklog that by the time of the secretary of state’s October 17 insufficiency determination, which was only two days after the statutory deadline, she had received from the boards of elections all of their verification reports concerning the sufficiency of the signatures contained on the supplemental part-petitions. The primary purpose of the requirement in R.C. 3519.16 ─ that the boards promptly make their sufficiency determinations of supplemental part-petitions ─ was served. There is also no evidence here that the minimal additional time taken by some of the boards of elections was intended to impair relators’ referendum rights.

Now, for this last out, ninth inning rally to be brought to a close only two more strikes are necessary; Jennifer Brunner has to issue notifications to the county boards of election that Issue 1 is dead and a 10th Circuit court challenge, for forced acceptance of certain invalidated signatures from the “3 C” counties, needs to be rejected. The Ohio Supreme Court has already telegraphed in their decision that they won’t look favorably on the arguments being employed by the plaintiffs in that case. Keep watching this site.

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