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.