On March 24, 2022 the Ohio Supreme Court denied Ohio Senator Vernon Sykes’ and Ohio House Minority Leader Allison Russo’s motion to move Ohio’s May 3 primary to a later date. Their motion followed the Ohio Supreme Court’s March 16 decision striking down the Ohio Redistricting Commission’s second stab at drawing non-partisan maps for Ohio’s General Assembly. Given that Ohio is supposed to mail overseas ballots and begin absentee voting by April 5, their request seemed reasonable.

Nonetheless, and notwithstanding that a federal court is now looking over its shoulder and considering relief of its own, the Ohio Supreme Court exercised its discretion and unanimously denied the Sykes/Russo request. The high Court’s decision is not too surprising given that it ordered the Redistricting Commission to file new General Assembly maps by March 28. Indeed, that new (and obviously deficient) map has now been filed, and the Ohio Supreme Court is once again considering whether to hold the Redistricting Commission in contempt. Thus, the Ohio redistricting quagmire is far from complete.

While the Ohio Supreme Court’s refusal to move the primary date is hardly surprising, Justice Fischer’s caustic concurrence attached to that holding is. Justice Fischer, who has repeatedly dissented from the Ohio Supreme Court’s multiple decisions invalidating Ohio’s maps, wrote separately to lambast Sykes’ and Russo’s attorneys for “fail[ing] to disclose … legal authority … directly adverse” to their request for a delay. “A knowing failure to disclose such information,” he charged, “may constitute dishonesty toward the tribunal” and violate the Rules of Professional Conduct. “I may be wrong,” Justice Fischer added, “but it seems the motion and its attached memorandum might be in contradiction to the requirements of the Ohio Rules of Professional Conduct requiring candor toward this court.”

What was this definitive, but neglected, case law that Sykes and Russo’s lawyers failed to cite? It was, according to Justice Fischer, a single Ohio Supreme Court statement on January 25, 2022 in its second holding that Ohio’s maps were unconstitutional, a holding that included Justice Fischer’s dissent, that “[t]he General Assembly established the date of the primary election, and it has the authority to ease the pressure that the commission’s failure to adopt a constitutional redistricting plan has placed on the secretary of state and on county boards of elections by moving the primary election, should that action become necessary.” This statement, Justice Fischer proclaimed, fully resolved “the primary-election-date issue.”

Justice Fischer’s indictment of the Sykes/Russo lawyers is fanciful. Notwithstanding his assertion that this January 25 comment, and his own dissenting opinions, conclusively establish that Ohio’s General Assembly alone has the authority to delay primary elections, the reality is that no controlling authority in Ohio has ever stated such a bold proposition. The Ohio Supreme Court has never said, and did not say on January 25, that it lacks the power to alter election deadlines when necessary to correct constitutional violations.

Its comment on January 25 that the General Assembly possessed the power to move the deadline, moreover, was a specific response to the Redistricting Commission’s argument that because of impending primary election the Court should “stay” its review and allow the revised map to be used. The Court simply responded that the General Assembly, which had likewise failed to pass acceptable maps, could cure that problem itself. Withholding other forms of relief based on a problem the State could easily cure was not warranted.

The Ohio Supreme Court, like most State courts, has overridden electoral deadlines in the past when rendered necessary to correct violations of Ohio law. This is true notwithstanding the fact that Ohio’s legislature has always in the first instance possessed the authority to fix relevant deadlines. In fact, this is pretty much how constitutional jurisprudence works across the board. State legislatures possess the power to pass laws, and courts have the authority to override them to correct constitutional violations. Years of precedent would hardly be rescinded in the brief comment referred to by Justice Fischer as being definitive.

Some day the Ohio Supreme Court may rule that it lacks the power to move a primary election date, but it has not yet come arguably close to doing so. Meanwhile, publicly charging counsel with “dishonesty, deceit, [and] misrepresentation,” as Justice Fischer has done, is serious business. Especially when made by a Supreme Court Justice in a published opinion. Justice Fischer’s clumsy accusations are so far removed from legal reality and judicial propriety that they can only be understood as being either personally or politically motivated. Neither is acceptable in a court of law. As a matter of professionalism and decency, Justice Fischer owes counsel for Sykes and Husso a public apology.

Professor Mark R. Brown is the Newton D. Baker/Baker and Hostetler Chair at Capital University Law School in Columbus, Ohio.

Suggested citation: Mark R. Brown, Assessing the Legality of Ohio Supreme Court’s Decision to Deny Moving Primary Election Date, JURIST – Academic Commentary, April 6, 2022, https://www.jurist.org/commentary/2022/04/mark-brown-ohio-supreme-court-moving-primary-date/.

This article was prepared for publication by Nandini Dwivedi, a JURIST assistant editor. Please direct any questions or comments to her at commentary@jurist.org