Wednesday, October 7, 2009

Breaking it Down: The Husted vs. Brunner Supreme Court Ruling

Clever Alias, Esq. is back with an analysis of Brunner's latest embarrassment. Check it out.

Having read the Supreme Court’s latest scolding of Jennifer Brunner I have to admit something; I completely underestimated how completely and utterly wrong Jennifer Brunner was on her Husted decision. My previous post on this issue guessed there was a 70% chance of Brunner being reversed. That number should been 100%. (I guess that’s why this is on a blog and not a Supreme Court opinion.)

Here is the Court’s introductory paragraph. I have annotated their comments [in brackets] with what I view as their lay term equivalent.

“Because the secretary of state erred in canceling Husted’s existing Montgomery County voter registration without following any of the statutorily prescribed methods for doing so [This crazy woman literally made this @%^& up! We’re not kidding!] and further erred in concluding that there was clear and convincing evidence that Husted is not a Montgomery County resident [even if we bought her first line of bull, everything else is wrong, too!], we grant the writ and order the Montgomery County Board of Elections to treat Husted as a Montgomery County resident for election purposes [now stop filing residency challenges, ProgressOhio!].

Perhaps that’s a bit flippant, but it’s not too far off.

As best I can tell, here are the Supreme Court’s reasons for reversing Jennifer Brunner:

1. The entire process, beginning with Chris Redfern’, a concerned citizen’s complaint and ending with Brunner’s tie breaking vote, failed to follow the necessary procedure in Ohio law for cancelling a person’s voter registration. Brunner thought that R.C. 3501.11(Q), which gives boards of elections the authority to “[i]nvestigate and determine the residence qualifications of electors,” allowed her to cancel Husted’s voter eligibility after a hearing. However, nowhere in that section does it provide that the board is allowed to cancel a person’s registration. The Court took the position that you can’t simply make up the authority to do something that isn’t in the law.
a. Of note, the section that does allow a board to cancel someone’s registration has several other requirements [such as sending a notice to the address and not receiving a response] that no one bothered to follow.
2. To add insult to injury, the Court outlined that even if Brunner did have the made up authority to cancel the registration of voters whose address had changed, Husted is a resident of Montgomery County!
a. “First, the secretary of state erred in concluding that Section 3, Article II of the Ohio Constitution is inapplicable.” The residency exception for state legislators in the Constitution applies in this case. Give credit to the Ohio GOP and Jason Mauk for being all over this from the moment Brunner announced her decision. One would think that if non-lawyers get it, a former judge would too.

b. The Court said that where a person intends to return is a key piece of evidence. Brunner shouldn’t have ignored this!

c. “By effectively treating the R.C. 3503.02(D) factor as the exclusive factor applicable to Husted, the secretary created an irrebuttable presumption to classify Husted as a nonresident of Montgomery County, which is not constitutionally permissible.” This is the most important paragraph of the opinion. Essentially this means, “you blatantly cheated in order to disqualify Husted. You can’t do this, idiot.”
If you read Brunner’s statement that was released after the decision it appears that she has a good PR advisor and is just trying to save face. Take this nugget:
“Whether it's a decision by a Democratic Secretary of State or an all-Republican Supreme Court, someone will question the motivation behind such a decision.”
What Brunner wants to say is “the stupid Republicans on the stupid Supreme Court get the last say. They’re playing politics too. I wasn’t wrong, I just wasn’t the one with the last word.”

She can’t say this because she’s a lawyer. Insulting the judiciary (e.g., the Supreme Court) can get you disciplined or disbarred. She knows she has to accept whatever they say and not blast them like she would a decision from Bill Harris or Mary Taylor.

Whether Brunner runs for SOS, Ohio Supreme Court Justice, or U.S. Senate, the ads will basically write themselves. “Jennifer Brunner can’t follow Ohio law, can you trust her to….”

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