Saturday, November 27, 2010

The Numbers Game: So Who's Counting?

The numbers in the  drawing above are those that Portsmouth City Clerk Jo Ann Aeh wrote on the back of the sixty-six  Recall Mayor Murray petitions  as she took  count of the signatories, a count that local and state law stipulates should be taken and sworn to by the circulators of the petitions, not by the city clerk. Aeh's numbers are now in dispute and under review by the Ohio Supreme Court, which previously, back in 1997, reprimanded her for mistreating recall petitions.

As Corey Columbo, Esq.,  of the McTigue-McGinnis law firm pointed  out in a brief filed with the Supreme Court on November 23rd, 2010 on behalf of Portsmouth’s embattled mayor Jane Murray, Ohio Revised Code 3501.38(E)(1) stipulates that circulators of recall petitions must write down the number of signatories (i.e., signers of petitions)  and sign an affidavit swearing to the accuracy of that number. The circulator must also swear that he or she witnessed the signing of the petition by each signatory and that each signatory, to the best of the circulator’s knowledge, was a registered voter. The purpose of this requirement is to prevent signatures being added, wittingly or unwittingly, fraudulently or inadvertently, after the circulator has signed the affidavit. The integrity of the electoral process is indispensable to the survival of American democracy. When voters lose faith in the integrity of the electoral process, they can  lose faith in democracy.   
Before they submitted their  recall petitions to the Portsmouth city clerk,  circulators swore to a notary under oath that they had  witnessed all the signatures appended to the  petitions; but the oath they took is worth little, practically speaking, if the circulator fails to write down on the petition the exact number of  signatories he or she is swearing to, which all circulators failed to do in both the first and second Recall Mayor Murray petition drives. There are twenty-five lines for  signatures on the recall petitions distributed to circulators by the Portsmouth city clerk.  But not every one of the sixty-six petitions of the second recall attempt had every line filled. On two petitions twenty- four of the twenty-five lines were unfilled. An unscrupulous person who has access to a petition after the circulator signs it could  fraudulently add names to it if the circulator has not written down the number of signings he or she witnessed. In the final count, the   number of signatures the petitioners had over the required number of  1148 was only seven, according to city clerk Jo Ann Aeh. That is a slim margin, which could induce  some people, given the bitterness of Portsmouth’s politics, to inflate the numbers to offset anticipated challenges to some of the signatories. 
Indiscriminate and Careless

The large number of signatories who were disqualified  suggests that too many of the circulators were indiscriminate and careless in their eagerness to reach 1148. O.R.C. 3501.38(E)(1) further requires a circulator to swear that all signatories were, to the circulator’s best knowledge, qualified to sign. But how can a circulator be sure of  a signatory’s qualifications  if they are buttonholing  people on the street or in restaurants and shopping centers, as at least several of them did? One female circulator solicited signatures at the entrance to Kroger’s Supermarket  and inside the Life Center at S.O.M.C., without getting permission to do so, until she was asked to desist and leave. The  large number of signatories whose names were subsequently stricken because they were not registered suggests  that some circulators, in their eagerness to get as many signatures as fast as possible, did not bother to  ask everyone they approached whether they were registered voters and whether they had moved since they last voted. Moving without notifying the Board of Elections would have disqualified them as signatories.  It is hard to understand why the Scioto County Board of Elections did not invalidate the petitions at the November 8th  protest hearing since the Supreme Court in 1992, in Citizens for Responsible Taxation v. Scioto County Board of Elections,  had ruled O.R.C. 3501.38(E)(1) required  petition circulators to write down on each petition the number of signatories. The 1992 petitions were not for  a special recall election, but  the same Ohio Revised Code 3501.38(E)(1) applied to the tax petitions.
The early 1990s was only a decade, not a century ago. Is institutional memory so short in Portsmouth that nobody at the Board of Elections can remember even vaguely the 1992 Citizens for Responsible Taxation v. Scioto Count Board of Elections case, in which the Supreme Court reemphasized  that circulators of petitions had to write down on each petition the number of people they had witnessed signing that petition?  The Board of Elections denied at the first protest hearing in October that R.C. 3501.38(E)(1) applied to that first recall attempt, and Bihl’s lawyer reminded the Board in November at the protest hearing on the second recall attempt that having denied that R.C. 3501.38(E)(1) was relevant at the first protest hearing, the Board couldn’t very well turn around and say it was a valid argument at the second protest hearing. And the Board apparently agreed, and so the precedent of willful ignorance at the Board was upheld. If the Board was not right at either the first or second protest hearing, at least it was consistent. There used to be a popular radio quiz show called “It Pays to be Ignorant,” the opening jingle of which was, “It pays to be ignorant, to be dumb, to be stupid, to be ignorant.” That is the situation in Portsmouth where the rule is “go along to get along,” which requires keeping a closed mind, at least on those  occasions when the control of the city by a corrupt clique is at stake.
   Since Jo Ann Aeh in  1992  had already been city clerk for about five years, why did  she  in 2010 certify two sets of recall  petitions even though  they did not include the information required by O.R.C. 3501.38(E)(1)? Had she forgotten the 1992 Supreme Court ruling in Citizens for Responsible Taxation  or had she found it more convenient, on behalf of the clique, to ignore it, even though Columbo had cited that case at the first protest hearing? In a gesture so typical of her unwarranted expansion of the authority of  the city clerk’s office, it was Aeh herself who wrote down on the back page of each petition the number of the signatories on it,  though not always accurately. The Supreme Court, and Columbo, following the Court’s example, emphasized that the requirement that the circulators write down the number of signatories on each petition was more than a technicality. Who writes down the number is not inconsequential. The fact that the city clerk, not the circulators, wrote down the number makes a world of  difference, not only practically but legally speaking, as the Board possibly will learn next week when the Supreme Court is expected to hand down a decision.

The Count

The evidence Columbo presented and the case law he cited in his  November 23rd  brief to the Supreme Court to invalidate the petitions to recall Mayor Murray seem compelling. For example, the Supreme Court’s decision in Finkbeiner v. Lucas County Board of Elections, rendered just last year, offers fresh reaffirmation of the Court’s position on the requirements that must be followed on recall petitions. Finkbeiner was the mayor in the Home Rule city of Toledo who, under another subsection of  O.R.C. 3501.38, challenged the petitions  of those who were seeking to remove him from office. The  Supreme Court ruled in Finkbeiner's favor and he served out the remainder of his term.
  It is hard  to see how the Supreme Court could not issue either a Writ of Prohibition, to prevent the special recall election on December 7th,  or a Writ of Mandamus, ordering the Scioto County Board of Elections to sustain Murray’s objections. But I now know enough about Home Rule to realize how much I don’t know. What I do know is  that the case law  related to recalls in Home Rule states, such  as Ohio, does not  provide the  same degree of consistency as in non-Home Rule states in regard to legal precedent. Because of the murkiness in Home Rule states on the question of what is a  municipality’s and what is a state’s area of responsibility and authority, each case that arises is, if not unique, at least different. It is harder to predict how the courts will rule in Home Rule states because of the  complications that arise between city charters and state statutes. But where the two are not in direct conflict, which Columbo argues is  the case with the Portsmouth charter and the Ohio Revised Code in regard to  3501.38,  the municipality is obliged to follow the state law, as the Portsmouth Charter acknowledges in Sections 143 and 165. Specifically, since there is  no provision in the Portsmouth charter or ordinances prohibiting it, the Board of Elections is obliged to follow the state law requiring circulators to indicate the number of signatories. 
The fact that all nine members of the Supreme Court are Republicans is not germane, at least in this  case. The incestuous politics of Portsmouth are bi-partisan; it does not make much difference in Portsmouth whether someone is a Republican or a Democrat. It’s the numbers that count in this case; and the Supreme Court, like the Count on Sesame Street,  can count. You can count on that.

OK, all you kiddies in Home Rule states, let’s count together, up to twenty-five signatories. One signatory, two signatories, three signatories, four signatories . . .”