Tuesday, September 22, 2009

Husted v. Brunner - a legal perspective of a total and complete mess

3BP contributor Insert Clever Alias Here, Esq. is back with another legal analysis. This time he helps us out by examining the Brunner/Husted fiasco. This is great stuff. Check it out.

I've briefly read Brunner's decision and the letters she's sent back and forth to the Mont. Co. Board of Elections. Essentially, there are at least two provisions and a great deal of case law that establish voting residence as, roughly, "the place where you intend to return." While Brunner acknowledged these laws, she applied a third provision that defined residency as, roughly, "the place where a married person's family lives."

This is the tricky part of her decision. I think she understood that if she applied the usual "intend to return" test that Husted probably wins. [note: Husted testified that he intends to return Kettering] While some of his water bills and other bits of evidence may indicate he doesn't reside there too often, I think a disinterested fact finder (e.g., NOT Brunner) would have concluded that's enough. By introducing a different provision of Ohio law into the mix she muddies up the water just enough to help her defend her position if she's reversed in Court. If that happens, Brunner will emphasize the fact that she was forced to apply conflicting law and can't be faulted for getting it wrong.

I think it's unquestionable that she picked a politically motivated result (Husted loses) and then reasoned to that result by bending (and perhaps breaking) well established law. I think there's a 70% chance that this will wind up reversed in Court. The issue does turn on the application of facts to a somewhat squishy legal concept and Brunner's rationale isn't that far out of whack.

However, I think it's readily available to almost anyone with a pulse that Ms. Brunner used her power in an attempt to injure a person who happens to be running for her job in an aportionment board year. In our Country, the right to vote is a fundamental right. I pray that Ohio doesn't send a person who fails to recognize that to the U.S. Senate.

UPDATE: I notice that Sen. Husted has answered the question of what comes next. Ohio Supreme Court should have a decision on this within 3 weeks.

Here is a super interesting point that I missed because I assumed Ms. Brunner would discuss all relevant authority. The Ohio Constitution - Article II Section 3, entitled "Residence Requirements for State Legislatures" - reads:

§3 Senators and representatives shall have resided intheir respective
districts one year next preceding theirelection, unless they shall have been
absent on thepublic business of the United States, or of this state.

Ms. Brunner did not mention this section at all in her decision. I find that very curious considering the Ohio Constitution happens to trump every state law that Ms. Brunner cites. It doesn't take a law degree to see how Section 3 might apply to Sen. Husted's situation. If the Supreme Court is so inclined, and I don't know if they will be, they could easily reverse Ms. Brunner on these 18 words.


  1. I'm not a lawyer, but I was under the impression that Article II Section 3, entitled "Residence Requirements for State Legislatures" dealt with folks who were called away on federal business...meaning if a state legislator had been...say Ambassador to Outer Mongolia...that would have been alright. But Husband in Upper Arlington doesn't quite have the same ring to it, does it?

  2. Insert clever alias here, Esq.September 23, 2009 at 4:37 PM

    Article II Section III was adopted in 1851 and revised in 1967.

    The 1851 version allowed legislators to meet the residency requirement if they lived outside their district but within the county in which their district was located.

    Other then the County requirement, the Section has seen no changes since 1851. The Ohio Constitution has exempted those that "have been absent on the public business of the United States, or of this State" from the residency requirement.

    Mr. Hurley, if Ohio had intended the interpretation you suggest then I believe they would not have included "or of this state" in the Constitution. The plain language of the Section (and courts tend to use the plain meaning unless something is confusing)exempts those who have been absent from their district "on the public business of [Ohio]."

    The question most likely becomes this: Is work for the Ohio General Assembly the "public business of [Ohio]?"

    If this is how the Supreme Court views the section then the opinion reversing Brunner's decision should be less than 8 pages long.


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