Federal safe harbor provision may not apply in OH: Dec. 7 not the deadline

[Wordie]

First, let me say I am not an attorney. But here is some legal info I've found that may change the way many DUers have been thinking about the OH problems.

I think that what the 2000 BvG decision was about was the Supreme Court attempting to make sure that the intent of the FL legislature was followed, and FL apparently specifically said that they wanted to take advantage of the safe harbor provision. That may not be the case in OH. Read this...

<snip>
Presidential Election Contest

There is no specific Ohio statute addressing a contest in a presidential election. 27 Presumably, the generally applicable election contest procedure described above would apply. The Ohio statutory scheme, however, makes no reference to the federal statutes governing presidential election contests. This could prove problematic. Under the “safe harbor” provision of 3 U.S.C. § 5, Ohio must reach a final determination of election controversies within 35 days of the presidential election. 28 A quick review of Ohio’s election contest procedure illustrates the problem. A contestor must file the petition within 15 days of the election results being certified (assuming no automatic or requested recount). R.C. 3515.09. Presumably, a contest concerning presidential electors involves a “statewide office” requiring the petition to be filed with the Chief Justice. See R.C. 3515.08. The court must then set the hearing within the 15-to-30-day window of R.C. 3515.10. Even without considering the time delay from election day to certification of results, meeting the35-day safe harbor provision is doubtful. Add to this mix the uncertainty of the 40-day deposition period of R.C. 3515.16 if the contest is “in the supreme court.” Further consider the effect of an appeal—if possible—and the 20-day appellate filing window. Following the Ohio statutory scheme makes compliance with 3 U.S.C. § 5 unlikely. 29

<unsnip>

The above was from Moritz law, here: http://moritzlaw.osu.edu/electionlaw/procedures_recount05.html#_ednref29

<edited for clarity>

[KaliTracy]

1. Which is why Blackwell took so long

to certify the votes. At least, it would seem that way.....

[Wordie]

2. Actually, this info says that Blackwells strategy may not have worked.

At least, I think so.

[read the law first]

3. I think you're on to something here. even if you're not an attorney

This looks promising. Good news!

[Wordie]

5. Are you an atty? If OH misses the safe harbor, then what? Here are

other questions I had from another thread. Does this make any sense to you?: http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=203&topic_id=119337&mesg_id=120261

101. That is what is so confusing. OH law, seemingly, allows controversies to
Edited on Mon Dec-06-04 09:30 PM by Wordie

extend BEYOND the federal safe harbor date (see my post #55). You are quoting Federal law. So, as I read that, it would appear that in OH, the law does not concern itself with the safe harbor date. After all, if OH law allows controversies to be PRESENTED way after the safe harbor deadline (a petitioner can submit a contest for up to 15 days after the certification, which puts it 9 days after the safe harbor date), then it HAS NOT provided "for final determination of contests or controversies by a law made prior to election day." The OH law, in fact, ALLOWs for the continuation of controversies and contests for a period that extends for a long time AFTER the safe harbor. Right?

I'm not an attorney. I only am able to read these things and interpret them logically. Unfortunately, the logical interpretation is not necessarily the same as the legal interpretation.

Any election law attorneys on DU?

[read the law first]

10. Nobody really seems to know what happens, if the electors get voided

I know that's a thoroughly unsatisfactory answer but I don't know that anybody's ever gone there. But we might this time. Strap on your helmets!

[New Earth]

4. now i'm really going to sound stupid

but there are numbers in your post, and they are throwing me off.

can you sum it up in a few sentences so i can comprehend it? :(

[Wordie]

6. The numbers refer to sections of the legislation, or footnotes.

As for trying to sum it up: all I can say is that maybe the December 7th date (for selecting the OH electors) that everyone has been worrying about isn't the problem we thought it was. (I hope.)

[kk897]

7. at the rally in Columbus last Saturday, Arnebeck said something

interesting. He said that his evidence proves that Kerry won Ohio, and then he went on to describe the possible consequences of this revelation and his case. One of them was that, taken out to its logical conclusion, there will be two sets of electors from Ohio in the Electoral College. I couldn't quite follow what all he was saying, but I think it was that, since the Kerry win would be proven after certification, the Republican electors would have to, by law, vote Republican (I've seen that in ORC 3515 electors are required to vote for the person who wins). Yet since a Kerry win would be "certified" by the Ohio Supreme Court, there would be an additional set of electors who would be required to vote for Kerry.

He didn't take it any further than that in his speech, but I guess the result of that situation would be, I dunno, a Constitutional crisis? At the very least it would cancel out the Ohio electors' votes.

[Wordie]

8. Jeez...a constitutional crisis, just what we need. I think Arnebeck has

something up his sleeve. He must have (just an intuition on my part, though.)

[Wordie]

9. Could it even be a JUDICIAL decision??? Look at this footnote!

<snip>
27. However, as late as 1914, Ohio apparently provided for a commission to hear contests involving presidential electors. See Link v. Karb, 104 N.E. 632, 638 (Ohio 1914) (“For instance, the contest of an election of an elector of the President of the United States shall be heard before a commission consisting of the Governor and four judges of the circuit courts, to be appointed by the Governor; the judgment of this commission is final.”).

<snip again>
29. Other commentators concur that compliance with the federal safe harbor provision is unlikely using Ohio’s statutory provisions. See Hugh M. Lee, Does Bush v. Gore’s Promise of Due Process in Federal Presidential Elections Create a Right Without a Remedy?, 13 STAN. L. & POL’Y REV. 53, 71-72 & n.106 (2002) (concluding that the mandatory provisions of an election contest under Ohio R.C. 3515.08—.10 would take more than thirty-five days).

Both of these are from the Moritz site, link in the OP.