Moritz Law: SOS Complaint Against Cuyahoga County BOE

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The Secretary of State's Complaint Against the Cuyahoga County Board of Elections

March 27, 2007



Terri L. Enns
Senior Fellow, Election Law @ Moritz
Associate Clinical Professor of Law
Moritz College of Law


On Monday, March 19, 2007, those who pay attention to such things were startled by the news that on the previous evening, Ohio's new Secretary of State Jennifer Brunner had placed a call to each of the four members of the bipartisan Cuyahoga County Board of Elections asking them to resign by the end of the day Wednesday. The Secretary stated that her actions were necessary to restore voter confidence and to improve elections in the county, which has been plagued by a series of problems (several studies are linked here) during the past several elections. On Thursday afternoon, March 22, following the resignations of the two Democrats on the Board, the Secretary filed a complaint against the remaining two members, who are Republicans. A hearing is scheduled for Monday, April 2, at 9:00 am in Cuyaho! ga Coun ty and will be presided over by William Owen, First Assistant Prosecuting Attorney in Delaware County, on the Secretary's behalf.

The Ohio Revised Code gives the Secretary of State considerable power over county boards of elections. The Secretary, in consultation with local party committees, appoints the members of each board, made up of two Republicans and two Democrats who each serve four year terms. ORC 3501.06. The Secretary of State "shall appoint" any qualified elector recommended by the nominee's county executive committee unless the Secretary "has reason to believe that the elector would not be a competent member of such board." ORC 3501.07. The Revised Code additionally permits the Secretary of State to "summarily remove or suspend any member of a board of elections ... for neglect of duty, malfeasance, misfeasance, or nonfeasance in office, for any willful violation of Title XXXV of the Revised Code , or for any other good and sufficient cause." ORC 3501.16.

The Complaint lays out five main charges, the first four of which are labeled "Misfeasance and Nonfeasance," and the last labeled as "Good and Sufficient Cause for Removal":



Count 1: "Failure to Adopt Adequate Procedures for Election Recounts Resulting in the Felony Convictions of Two Board Members" (who were convicted and sentenced for negligent misconduct and failure to perform their duties related to a recount in the 2004 presidential election);

Count 2: "Failure to Manage Competently the Board’s Financial Affairs" (including underestimating financial needs and failing to properly administer some federal Help America Vote Act funds);

Count 3: "Failure to Ensure the Efficient Administration of Elections in 2004, 2005 and 2006" (including issues with ballot security and storage, poll book reconciliation, proof reading of ballots, poll worker assignment and training, and registration list management);

Count 4: "Failure to Ensure An Acceptable Level of Performance of Voting Equipment" (including failure to adequately test optical scan machines, which resulted in an expensive hand count of absentee ballots that delayed reporting of results in the May 2006 primary);

Count 5: "Administration of Elections in Cuyahoga County Has Resulted in a Lack of Public Confidence in the Integrity of the Election Process in Cuyahoga County."



The charges contained in the complaint raise questions about who is best placed to oversee the functioning of those various layers that constitute Ohio's election administration system. Each county board of elections is to "ake and issue rules and instructions, not inconsistent with law or the rules, directives or advisories issued by the secretary of state, as it considers necessary for the guidance of election officers and voters; ..." ORC 3501.11.



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http://moritzlaw.osu.edu/electionlaw/comments/articles.php?ID=129