IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION STATE EX. REL. DAVID YOST AND : DELAWARE COUNTY BOARD OF : ELECTIONS, : : Plaintiff, : Case No. C : vs. : Judge Sargus : NATIONAL VOTING RIGHTS INSTITUTE : Magistrate Judge Kemp : Defendants. : BRIEF OF AMICI CURIAE COUNTY COMMISSIONERS ASSOCIATION OF OHIO AND OHIO ASSOCIATION OF ELECTION OFFICIALS Mark Landes, Esq. ( ) ISAAC, BRANT, LEDMAN & TEETOR LLP 250 East Broad Street, Ste. 900 Columbus, Ohio Telephone: (614) Facsimile: (614) marklandes@issacbrant.com Attorney for Amici Curiae County Commissioners Association of Ohio and Ohio Association of Election Officials In support of the Delaware County Plaintiffs v5

2 I. INTRODUCTION Defendants want a recount for so that they can grandstand about mythical voting irregularities. Their claims should fail in this Court for the following reasons: There is no federal jurisdiction to force a recount authorized only under state law. Defendants Badnarik and Cobb, the only parties authorized to ask for a recount, cannot receive injunctive relief from this Court because neither candidate has a credible claim that they did or could win Ohio s electoral votes. Rios v. Blackwell, Case No. 04CV7724, Carr, J. Senator Kerry does not want a recount. The injunction sought by Defendants could prohibit Ohio s electoral votes from counting. There has not yet been any count to recount. Defendants have improperly bought this case to this Court to use it as a platform for arguing a perceived state right to a recount. Admitting that a recount has no chance of changing the outcome of the election, Defendants, who have lost before in another federal court before Judge Carr, seek an expensive and futile process for no other reason than because, they claim, the state law allows them to do so. However, the law was never intended to be applied in an absurd situation such as the one presented to this Court. The United States Constitution Article II, 1 of the Constitution specifically reserves the issue of how a state votes for President to the state law. There is no federal law governing recounts and no federal rights are implicated. This Court should not entertain Defendants efforts and should remand this state law matter back to the state court. Amici, a bi-partisan group of Election Officials and County Commissioners, take strong exception to the unspecified accusations and allegations that have been flung about 2

3 in recent weeks. However, none of those accusations and allegations is directly raised here. Instead, Defendants seek to force the county boards of elections to engage in an entirely academic exercise -- one that will be costly, lengthy and with the intention that it will be ultimately damaging to the electoral process. Defendants set forth a single reason for their requested recount: they want to assure that every vote counts. So do Amici. Amici have already assured that every vote was counted in completing its canvass of the votes. The results reported by each county fall well beyond any reasonable margin of error. A recount action will result, at best, in only a miniscule change in the count totals of any election. In the last statewide recount and the only one in Ohio during at least the past twenty-five (25) years, some 3.3 million votes were cast. And, after a complete recount of the entire state, the resulting difference in vote totals was a mere 146 votes. Here the difference between President Bush and either Candidates Cobb or Badnarik is well over five million votes. Surely, the Ohio legislature did not intend for Ohio's recount laws to apply in situations where, as here, a recount will admittedly have no impact whatsoever on the results of the election. And certainly Ohio law does not require the counties to spend valuable and scarce resources on a fruitless effort. In such cases, county officials must have the authority to exercise their discretion in the expenditure of scarce tax payer dollars. The people of Ohio very clearly and resoundingly did not choose either Candidate Cobb or Badnarik for President. Yet those candidates now come to Ohio and subvert the Ohio recount process for no real purpose but to cost the taxpayers of this state their hard- 3

4 earned money, potentially disenfranchise their Electoral College vote, and further muddy and sully the integrity of the voting system in the State of Ohio. President Bush won the presidential election nationally, prevailing in Ohio by over 135,000 votes based upon the unofficial canvass. The Green Party candidate (David Cobb) and one of the Defendants herein, received just twenty-four (24) votes out of almost 6 million votes cast. The Libertarian Party candidate, Michael Badnarik, fared somewhat better and received 14,331 votes, or approximately 0.26% of all votes cast. Even Senator Kerry has conceded the race and publicly stated that he cannot win: I would not give up this fight if there was a chance we would prevail. But it is now clear that even when all the provisional ballots are counted -- which they will be -- there won t be enough outstanding votes for us to be able to win Ohio, and therefore we cannot win this election. (Sen. John Kerry, Concession Speech, Boston, MA, 11/3/04). There is no conceivable way that either Mr. Cobb or Mr. Badnarik can win the Presidential election in Ohio, or any other state for that matter. A recount in Ohio will not change that unassailable fact. Similar claims have been pursued, and discredited, in other states. In Nevada, for example, Candidates Cobb and Badnarik requested a recount, then withdrew their request after finding that they would have to pay close to $400,000 for the cost of a recount in that state. In Florida, allegations were raised that a certain county could not have voted so heavily for President Bush. A recount conducted by the Miami Harold found the vote to be valid. In New Hampshire, Ralph Nader requested a recount, only to find that there was no change in the election results. The Electoral College meets on December 13, All disputes over election results under state law must be resolved before December 7, 2004 in order for Ohio to 4

5 enjoy the presumption as to the validity of its electoral votes accorded by the federal safe harbor provisions found in 3 USC 5. A statewide recount cannot be completed before December 7, 2004, particularly in light of the Defendants unprecedented request for a full hand recount of the entire state, leaving Ohio open for even more litigation about the finality of its election as of December 7, Continued allegations, unfounded lawsuits and vague conspiracies only risk Ohio s ability to participate in the Electoral College. Since it is clear that Ohio s Electoral College votes will not go to Badnarik, Cobb, or even Senator Kerry, the only possible result will be to disenfranchise Ohio from participating in the Electoral College at all. Without Ohio s electoral votes, President Bush is still re-elected, although the popular vote of Ohioan s will not be counted. A recount in Ohio will not affect the outcome of the election under any stretch of imagination, but serves instead as a frivolous academic exercise and a waste of taxpayers money. The Ohio legislature did not intend that a candidate who received 24 votes out of more than 5 million has the ability to contort the intention of the Ohio law to force a recount that everyone agrees will not affect the outcome of the election. As such, counties must have the discretion to allocate scarce resources to those issues that best benefit its residents. II. STATEMENT OF INTEREST OF AMICI CURIAE A. County Commissioners Association of Ohio Amicus Curiae, the County Commissioners Association of Ohio ( CCAO ), is an association of the Boards of Commissioners of Ohio s eighty-eight (88) counties headquartered in Columbus. CCAO was founded in 1880 to promote the best practices 5

6 and policies in the administration of county government for the benefit of all of Ohio s residents. CCAO provides legislative representation, technical assistance, and educational opportunities for county commissioners and their staffs throughout Ohio. CCAO has a strong interest in this case due to the significant financial burden that Defendants request for a recount imposes on Ohio s counties. Using Defendants own allegations that a recount in Delaware County alone will cost at least $75,000 (Notice of Removal, 9), the cost to Ohio s eighty-eight counties could be upwards of $5-6 million. The funds to pay these exorbitant sums for a recount will be sought from CCAO s member Boards, who provide funding to county boards of elections. Ultimately, these funds will be paid by Ohio s taxpayers. Over the past few years, county budgets have been inflicted with financial strain, finding it difficult or impossible to fund even required or advisable governmental agencies and programs. B. Ohio Association of Election Officials The Ohio Association of Election Officials ( OAEO ) is a bipartisan organization representing the members of Ohio s eighty-eight (88) county boards of election, their directors and deputy directors. OAEO is a professional organization dedicated to the training and education of its members, thus ensuring fair and accurate elections for all Ohioans. The OEAO similarly has a strong interest in this case.. The stress of the presidential election is behind the boards of election, and the workers should allow themselves the benefit of their labors and find satisfaction in their successful completion of the election. Work must begin on the next elections, with special elections planned for 6

7 many of the school bond issues in February, and a primary for municipal offices in May. Work continues on compliance with the federal Help America Vote Act. This case is done: defendants ask for a motion for reconsideration, in effect, on dicta.. They should be denied. III. ARGUMENT A. Jurisdiction It is axiomatic that the federal courts are courts of limited jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 128 L. Ed. 2d 391, 114 S. Ct (1994). Indeed, the party seeking to invoke the subject matter jurisdiction of a federal district court in this case, the Defendants bears the burden of showing that the matter is properly before that court. See Serras v. First Tenn. Bank Nat l Ass n, 875 F.2d 1212, 1214 (6 th Cir. 1989) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 80 L. Ed. 1135, 56 S. Ct. 780 (1936)). Defendants in the instant case attempt to invoke this Court s subject matter jurisdiction by alleging the existence of both federal question jurisdiction under 28 U.S.C and diversity jurisdiction under 28 U.S.C Plaintiff s claims do not arise under federal law, and because Plaintiff is not a citizen for diversity purposes, federal jurisdiction does not exist in this case. 1. Federal Question Jurisdiction Under 28 U.S.C. 1331, the district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. In determining whether an action arises under federal law, district courts have adopted the 7

8 well-pleaded complaint rule, which requires that a federal question be presented on the face of the complaint. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 96 L. Ed. 2d 318, 107 S. Ct (1987); Louisville v. Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152, 53 L. Ed. 126, 29 S. Ct. 42 (1908). Plaintiff s state law claims for injunction and declaratory relief are equitable claims based solely on Ohio s recount statute, R.C , et seq. A state law claim arises under federal law within the meaning of 28 U.S.C in two circumstances. Franchise Tax Bd. v. Constr. Laborers Vac. Trust, 463 U.S. 1, 13, 27-28, 77 L. Ed. 2d 420, 103 S. Ct (1983). The first circumstance, commonly referred to as complete preemption, exists when federal law so completely sweeps away state law that any action brought under state law is transformed into a federal action that can be brought originally in, or removed to, federal court. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 95 L. Ed. 2d 55, 107 S. Ct (1987). The complete preemption doctrine is not implicated in this case. Federal law has not swept away Ohio s election laws. The second, and more common, circumstance under which a state law claim can arise under federal law is if a well-pleaded complaint establishes that the plaintiff s right to relief under state law necessarily depends upon resolution of a substantial question of federal law. Thornton v. Southwest Detroit Hosp., 895 F.2d 1131, 1133 (6 th Cir. 1990) (noting that federal courts have jurisdiction in those cases in which a wellpleaded complaint establishes either that federal law creates the cause of action or that the plaintiff s right to relief necessarily depends on resolution of a substantial question of federal law). 8

9 In Merrell Dow Pharm., Inc.. v. Thompson, 478 U.S. 804, 92 L. Ed. 2d 650, 106 S. Ct (1986), the Supreme Court addressed the issue of whether a state law claim necessarily depends upon the resolution of a substantial question of federal law. 1 The Supreme Court held that the plaintiffs had not invoked the federal courts arising under jurisdiction by raising state-law claims for negligence that incorporated federal drug labeling standards. See id. at 817. The Supreme Court cautioned that the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction. Id. at 813. Similarly, Defendants allege that Plaintiff s state court claim arises under federal law. Notice of Removal, 4-7. Specifically, Defendants assert that because Article II, 1, Clause 2 of the United States Constitution states that each state shall appoint electors in such manner as the [state s] legislature.... may direct, [that ]it follows that [f]ederal law governs the method by which a state legislature chooses to select Presidential electors. Notice of Removal, 4. Defendants statement is not only legally incorrect, but also internally inconsistent. As the Constitution expressly leaves to each state the method by which it will select its presidential electors, it cannot then be, as Defendants state, that federal law governs the method by which a state legislature chooses to select its electors. Notice of Removal, 4. Article II, 1, Clause 2 of the United States Constitution makes clear that the mechanism and manner for choosing a state s electors is up to each individual state: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of senators and 1 In Merrell Dow, the plaintiffs sued a drug manufacturer on a state-law negligence claim, alleging that its drug Bendectin was misbranded in violation of the Federal Food, Drug, and Cosmetic Act (FDCA). See Merrell Dow, 478 U.S. at

10 Representatives to which the State may be entitled in the Congress.... (Emphasis added.) See also Bush v. Gore, 531 U.S. 98, 104 (recognizing right of states to determine manner for choosing Presidential electors); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 861, 131 L. Ed. 2d 881, 115 S. Ct. 1842, n.8 (1995) (recognizing that the Constitution leaves to the states the manner in which it selects its Presidential electors); McPherson v. Blacker, 146 U.S. 1, 28-35, 36 L. Ed. 869, 13 S. Ct. 3 (1892) ( the appointment and mode of appointment of electors belong exclusively to the States under the Constitution of the United States and recognizing that the State legislature s power to select the manner for appointing electors is plenary, it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the framing of our Constitution) (emphasis added). Consistent with Article II, 1 of the United States Constitution, the method that the Ohio legislature has chosen to select its Presidential electors is a direct election by the people of Ohio through popular vote. R.C Votes cast next to the names of the candidates for President and Vice President are counted as a vote for each of the candidates for presidential elector whose names have been certified to the secretary of state. R.C (A). Ohio statutes also govern certification and conduct of Presidential electors. R.C and Plaintiff s Complaint, filed in state court, concerns the sole issue of re-counting the popular vote for Presidential electors in Delaware County. The procedure for recounting votes in Ohio was established by the Ohio legislature long ago. Whether and how Ohio recounts votes does not raise a substantial question of federal law or even implicate federal law. To the contrary, Article II, 1 of the Constitution specifically 10

11 reserves the issue to the states and makes such issue purely a matter of state law. As the Supreme Court recognized in McPherson and reiterated in Thornton and Bush, plenary power over the mechanism and manner for choosing electors resides with each individual state. Defendants concede that, consistent with this plenary power, the Ohio legislature has enacted a detailed statutory scheme for the appointment of Presidential electors by direct election. Notice of Removal, 5. Defendants attempt to side-step the fact that Plaintiff s Complaint arises solely under Ohio detailed statutory scheme for choosing presidential electors by asserting: Because the Ohio legislature s authority derives from the Constitution, any cause of action involving Ohio s statutory scheme governing the selection of Presidential electors presents a federal question under the Constitution. Notice of Removal 5. But federal jurisdiction is not established simply because Ohio is acting under a Constitutional grant of power to the States. [M]ere reference to a federal statute or Constitutional provisions does not establish federal jurisdiction unless a substantial, disputed question of federal law is a necessary element of a state cause of action. Michigan Southern R.R. Co. v. Branch & St. Joseph Counties Rail Users Ass n, Inc., 287 F.3d 568, (6 th Cir. 2002) (citing Ford v. Hamilton, 29 F.3d 255, 258 (6 th Cir. 1994)). Resolution of the issues asserted by Plaintiff pertaining to Ohio s recount statutes do not turn on the meaning, interpretation, or application of federal law. Simply put, the resolution of Plaintiff s equitable claims will not be informed by, or have effect on, Art. II, 1, Clause 2 of the United States Constitution. Quite to the contrary, Article II will continue to defer the manner for selecting Presidential electors to each individual state. 11

12 Plaintiff does not present a federal question and none exists. Accordingly, because no federal question is implicated here, and because, as discussed next, no diversity jurisdiction exists, this case must be remanded to state court. 2. Diversity Jurisdiction Defendants also invoke this Court s jurisdiction by alleging that diversity jurisdiction exists in this case. Notice of Removal, Diversity jurisdiction plainly does not exist in this case. Title 28 U.S.C. 1332(a) provides: (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $ 75,000, exclusive of interest and costs, and is between (1) Citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, defined in section 1603(a) of this title [28 USCS 1603(a)], as plaintiff and citizens of a State or of different States. For purposes of diversity jurisdiction under 1332, states and state agencies are not citizens. See Baker v. Minnesota Mining and Manufacturing Co., Inc. ( 3M ), 99 Fed. App. 3d 718, 721 (6 th Cir. 2004) (citing Postal Tel. Cable Co. v. Alabama, 155 U.S. 482, 487, 39 L. Ed. 231, 15 S. Ct. 192 (1894)); Maddy v. Univ. of Kentucky Hosp. and Medical Ctr., 1976 U.S. Dist. LEXIS 16952, *8 (E.D. Ky., Jan. 28, 1976). Because a state or state agency is not a citizen, there is no basis for diversity jurisdiction where the state agency is a party in interest. 2 2 It is now established beyond controversy that a state is not a citizen within the meaning of 28 U.S.C.A so that where, in a suit involving a state agency, the state is determined to be the real party in interest, there is no basis for diversity jurisdiction. David Johns, State Agencies, or Officers Thereof, as Citizens for Purpose of Federal Diversity Jurisdiction Under 28 U.S.C.A. 1332, 6 A.L.R. Fed. 615 (1971). 12

13 The Supreme Court of Ohio has held on several occasions that Ohio s county boards of elections are state agencies acting under the direction of Ohio s Secretary of State. See State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections, 80 Ohio St.3d 302, 307 (1997); State ex rel. Chevalier v. Brown, 17 Ohio St.3d 61, (1985); State ex rel. Columbus Blank Book Mfg. Co. v. Ayers, 142 Ohio St. 216, 220 (1943) ( In the prior election code the Secretary of State was designated as the state supervisor and inspector of elections (citation omitted), and the boards (now designated as the boards of elections) were designated as boards of deputy state supervisors and inspectors of elections (citation omitted) * * * the General Assembly has changed the name of the boards from deputy state supervisors and inspectors of elections to boards of elections; their duties, however, are prescribed in almost identical language. ). See also State ex rel. Moss v. Franklin Cty. Bd. of Elections, 69 Ohio App. 2d 115, 117 (Franklin App. 1980) (relying on Ayers for proposition that Franklin County Board of Elections is not a political subdivision, but rather acts under the direct control of, and is answerable only to, the Secretary of State in his capacity as the chief elections officer of the state.). Thus, Plaintiff is not a citizen for diversity purposes. Likely realizing this, Defendants fail to even make an allegation of Plaintiff s citizenship. See Notice of Removal, Because Plaintiff is a state agency and not a citizen, no diversity jurisdiction exists in this case, and this case must be remanded to state court. B. Statutory Construction Even if this Court finds that it has subject matter jurisdiction over Plaintiff s claims, this Court must still grant the declaratory and injunctive relief Plaintiff seeks. It is a cardinal rule of statutory construction that a statute should not be interpreted to yield 13

14 absurd results. See State ex rel. Dispatch Printing Co. v. Wells, 18 Ohio St. 3d 382, 384, 481 N.E.2d 632, 634 (1985) see also Slater v. Cave, 3 Ohio St. 80, (1853) ( where the literal construction of a statute would lead to gross absurdity,... provisions leading to collateral consequences of great absurdity or injustice, may be rejected.... ). Additionally, Ohio R.C. 1.47(C) states that, [i]n enacting a statute, it is presumed that... [a] just and reasonable result is intended. Defendants have clearly stated their intention to seek a manual recount of each ballot cast in all of Delaware County s 123 precincts as part of a larger effort to seek a hand recount of the more than 4.5 million ballots cast for President in all eighty-eight (88) counties in Ohio. Defendants intend to seek this hand recount of millions of ballots despite knowing that: (1) the cost to the State of Ohio (i.e., its taxpayers) will be millions of dollars; and (2) it will not affect the outcome of the election. 1. Cost Of A Recount. By Defendants own admissions, their request for a recount will not change the outcome of Ohio s Presidential election. Nonetheless, they intend to strap Ohioans with the financial expense of their metaphysical exercise. In Cuyahoga County, a recount would take forty (40) staff people two days to complete, and cost the county over $100,000. Affidavits of election officials are being collected and will be filed as they come in. Secretary of State J. Kenneth Blackwell has stated that a statewide hand recount of all ballots would cost at least $1.5 million. Even Defendants own allegations support the conclusion that the cost to conduct a hand recount would be unreasonably burdensome on Amici Curiae and Ohio s taxpayers. Defendants own allegations of 14

15 jurisdiction assert that at least $75,000 is at issue just with regard to Delaware County. Notice of Removal, Extrapolating this $75,000 minimum cost in Delaware County to all of Ohio s eighty-eight (88) counties results in a total cost of $6.6 million dollars to Amici Curiae and Ohio s taxpayers to conduct a recount. 3 This cost will be borne by Amici Curiae, who will have no choice but to seek these scarce or non-existent funds from its taxpayers. These are funds that Ohio s counties do not have to spend. Particularly in rural sections of eastern and southeastern Ohio, extra funds for a recount simply do not exist and, if they did exist, could be put to much better use that chasing after a recount that will not change the ultimate outcome of the election. 2. A Recount Will Have No Affect On The Outcome. Not only will a hand recount of each ballot cast for President be costly, but just as importantly, this great expense imposed upon Amici Curiae and Ohio s taxpayers will have no effect on the result of the election in Ohio or the selection of Ohio s electors to the Electoral College. Evidence from past Ohio statewide recounts demonstrates that it would have no effect. In the past five years, Cuyahoga County has conducted several recounts. The largest change in election results there was just five (5) votes. In Mahoning County, which uses electronic touch screen machines, the largest change in election results over the last two years due to a recount was two (2) votes. Franklin County similarly reports that, since 2000, the largest change in election results due to a recount was less than ten 3 $75,000 per county to conduct a recount * 88 counties = $ 6.6 million 15

16 (10) votes. And in Allen County, the largest change in election results due to a recount was two (3) votes. (See Affidavit of Allen County Elections Official, Exhibit A) The most recent statewide recount occurred in 1990 in the Attorney General s contest between Lee Fisher and Paul Pfeifer. After certification, Mr. Fisher was ahead of Mr. Pfeifer by 1,380 votes. After the statewide recount, the margin between the candidates was 1,234 votes: a net change of 146 votes out of 3.36 million votes cast. Based on historical recount data, there is no doubt that, a statewide recount will not alter the results of the election. According to the unofficial results from the Secretary of State, President George W. Bush won the presidential election in Ohio by more than 136,000 votes over Senator John Kerry. President Bush received a total of 2,796,147 votes in Ohio. John Kerry received 2,659,664 votes in Ohio. Thus, in order change the outcome in favor of the election of Defendants Cobb or Badnarik, a recount would have to cause a change of 5.9 million votes. Defendants attempt to seek a recount when they lost by 5.9 million votes is nothing short of absurd. Even Senator Kerry has not sought a recount and has conceded the election. Senator Kerry and other Democratic officials have repeatedly stated that they are not contesting the results and that a recount will not change the outcome in Ohio. See, e.g., Mark Niquette and Robert Vitale, Kerry Team Weighs In On Recount, The Columbus Dispatch, 12/2/04 ( Kerry isn t trying to overturn the Ohio outcome and hasn t found evidence proving fraud....); Jules Witcover, Op-Ed, Recount In Ohio, The Baltimore Sun, 11/26/04 ( Our eyes are wide open, and to this date we ve found no evidence of confirmed fraud, said Dan Hoffheimer, Kerry Ohio Campaign Counsel. About 16

17 155,000 such ballots were cast, Mr. Hoffheimer says, and Mr. Kerry would have had to win nearly all of them to overcome Mr. Bush s lead of 135,000 votes in Ohio on election night. It would have to be a virtual miracle, he says. ). See also, e.g., Carl Weiser, For Some, Ohio Still Is Not Decided, The Cincinnati Enquirer, 11/13/04 (Terry McAuliffe, DNC Chairman, states that the election outcome is undisputed. Unlike 2000, the Republicans simply received more votes than the Democrats in this election, he said. We are not contesting the outcome of this election. ); Conor O Clery, A Silver Lining On The Horizon For Grieving Democrats, The Irish Times, 11/13/04 ( A Kerry campaign spokesman said in Washington, We can change the future, we can t rewrite the past. The simple fact of the matter is that Republicans received more votes than Democrats, and we re not contesting this election. ) 2. To Require Amici Curiae To Expend Millions Of Dollars Of Taxpayer Money To Provide A Recount To Two Candidates Who Received ¼ of 1% Of The Vote In Delaware County And Throughout Ohio Where The Result Of The Election Is Not In Doubt Would Be An Absurd And Unreasonable Interpretation Of Ohio Law. Clearly the Ohio legislature did not intend to permit candidates, who are not Ohio taxpayers and who have no reasonable expectation to benefit from a recount, to cause the expenditure of millions of taxpayer dollars where the election result is clear. The fundamental purpose of a recount is to assure that the apparent victor is indeed the victor. That is not in question here. Defendant Cobb received one vote in Delaware County. Defendant Badnarik received approximately 1/5 of 1% of the vote in Delaware County. Statewide, Defendant Cobb received just 26 votes, and Defendant Badnarik received approximately ¼ of 1 % of the 5 million votes cast. It is absurd and unreasonable that these individuals, who are 17

18 not from Ohio and do not pay Ohio taxes, could cost Ohio s taxpayers millions of dollars for a purely academic and metaphysical exercise especially where the result of the election will not change as a result. To interpret and construe Ohio s recount statute in such a way would yield unjust, and unreasonable results. Ohio law requires that, a just and reasonable result is intended from its statutes. R.C. 1.47(C). This statute establishes a presumption that a just and reasonable result is intended. Stewart v. Trumbull County Board of Elections (1973), 34 Ohio St. 2d 129, 132. Ohio Courts repeatedly hold that a statute should not be interpreted to yield absurd results. See, Wells, supra, at 384; State ex rel. Ryland v. Schinkal (1976), 49 Ohio St. 2d 1. Likewise, where the literal construction of a statute would lead to gross absurdity,... provisions leading to collateral consequences of great absurdity or injustice, may be rejected.... Slater, supra at Allowing A Recount To Be Brought Could Jeopardize Ohio s Ability To Take Advantage of the Safe Harbor Provided By 3 U.S.C. 5. Most importantly, Plaintiff s relief must be granted because Defendants intention to seek a hand recount of all 5 million ballots cast in Ohio would take OAEO s members weeks to complete, pulling Ohio from the safe harbor set forth in 3 U.S.C. 5, and potentially jeopardizing Ohio s ability to have any presidential electors represent it before the Electoral College. This result is absurd and outrageous where the result of the election is clear and the voice of Ohio s electorate has been heard. As 3 U.S.C. 5 states, in order for a state to take advantage of the federal safe harbor, it must have finalized the election results at least six days before the time fixed for the meeting of the electors: 18

19 If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned. The meeting of the Electoral College is December 13, See 3 U.S.C. 7. Thus, Ohio must have final election results and select its electors on or before December 7, 2004 in order to obtain the benefit of the safe harbor. See 3 U.S.C. 5. Defendants plan for a hand recount would take Ohio outside of the safe harbor. Doing so merely to re-count votes that have already been counted, certainly cannot be consistent with the Ohio legislature s intent to take advantage of the safe harbor for the selection of presidential electors set forth in federal law. This course of action that Defendants prescribe would have the undesired effect of putting all of Ohio s twenty (20) electoral votes in jeopardy, potentially resulting in the disenfranchisement of all of Ohio s voters from participation in the Electoral College. As Chief Justice Rehnquist so aptly stated in Bush v. Gore: such an order could not reasonably be deemed to be an appropriate remedy. Bush v. Gore, 531 U.S. at 122. And as another federal court has stated with regard to these same Defendants: [n]either [Cobb nor Badnarik] can credibly maintain that he possesses even a remote chance of victory through a recount. See Rios v. Blackwell, N.D. Ohio, Case No. 3:04-CV-7724 (Carr, J.), Order of November 23, 2004 (attached hereto as Exhibit B). 19

20 IV. CONCLUSION For the foregoing reasons, Amici respectfully urge this Court to deny all requested relief. /s/ Mark Landes Mark Landes, Esq. ( ) ISAAC, BRANT, LEDMAN & TEETOR LLP 250 East Broad Street, Ste. 900 Columbus, Ohio Telephone: (614) Facsimile: (614) Attorney for Amici Curiae County Commissioners Association of Ohio and Ohio Association of Election Officials In support of Delaware County Plaintiffs 20

21 CERTIFICATE OF SERVICE I hereby certify that on December 3, 2004, a copy of the foregoing Notice of Appearance was filed electronically. Notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. /s/ Mark Landes Mark Landes 21